Debts of Gratitude

Over at the CBA National Magazine, Rebecca Bromwich has an interesting article reminding us of our debt of gratitude to the campaigners for women’s suffrage, and arguing that we owe it to their memory to vote it in the upcoming election. The first point is important and well-taken. The second, in my view, does not follow.

Prof. Bromwich points out that

The story of Canadian democracy is one in which a debt is owed to military men, yes, but it is also a story of people of courage in civilian life, ordinary people doing extraordinary things. It was not just soldiers on battlefields who won for us our democracy but we owe our democratic rights but also women suffragists, who undertook many years of struggle, were beaten, jailed, went on hunger strikes, carried out acts of civil disobedience, and even died, for their cause.

That’s very true, and the reminder is important. People who agree with prof. Bromwich that gratitude to those to whom “we owe our democratic rights” is a reason for voting are indeed apt to single out soldiers in that category. But if the right to vote was preserved, at least in part, on the battlefield, it was largely won elsewhere. The activists who obtained the extension of the franchise to groups excluded from it ― and women, of course, were by far the largest such group ― also deserve our admiration and appreciation. Prof. Bromwich names many of those who helped create “firsts” in women’s suffrage, but let me also mention Thérèse Casgrain and Idola Saint-Jean, two of the campaigners who saw to it that the women of Québec were finally able to vote in provincial elections, albeit a generation after they gained that right for federal elections.

And let me mention, too, other “people of courage in civilian life” to whom we also owe our democratic rights. For example the citizens of the riding of Charlevoix who, in 1876, braved social reproof and religious condemnation to bear witness to the Catholic Church’s campaign of intimidation against those who dared exercise their franchise in accordance with their own conscience rather than that of their priests and bishops ― a story told in the report of the Supreme Court’s decision in Brassard v. Langevin, (1877) 1 SCR 145, and one I summarized here. And spare a thought, too, for the legislators who, even if too late, acceded to the suffragist campaigners’ demands. If we can lionize judges who recognize rights from the security of their life-tenured offices, we should do no less for legislators who put their career on the line for doing it.

All that said, unlike prof. Bromwich, I do not think that awareness of these debts of gratitude ought to “entice Canadians – all Canadians – to actually use their right to vote in the federal election set to take place” this fall. I would not support “a resolution that connects the centennial anniversaries of milestones in the achievement of women’s suffrage in Western Canada with the imperative for all Canadians to vote in the federal election.” I do not believe that our debts of gratitude to those who helped obtain or preserve our right to vote can translate into some sort of moral obligation to exercise this right.

Voting, needless to say, is not the only one of our rights that was took the courage and sacrifices of many people to be recognized. Yet one never hears that we owe it to those who won or defended these rights to actually exercise them. It is never said, for instance, that we ought to honour, say, Frank Roncarelli by attending worship (even at an atheist Church if we are so inclined!). There are very good reasons for honouring him, of course, but not only is it not incumbent on every citizen who benefits from his sacrifices to do so, but even if one is wishes to honour him, this can be done in any number of ways. Is there something special about the way in which the way in which the right to vote was won that compels all of us to honour those who won it by exercising it? I don’t think I have ever seen an argument to that effect.

There are, of course, other arguments in favour of a duty to vote. Prof. Bromwich mentions one of them when she says that “[t]he exercise of the right to vote is crucial for the legitimacy and healthy functioning of democracy.” (I do not find this or any other such argument persuasive, but that’s a matter I’ll take up in other posts as we approach the election.) However, these arguments are independent from the one based on gratitude. If it were true that we must vote in order to preserve a legitimate and well-functioning democracy, that would be true even democracy were the only political regime the world had ever known and there was nobody to thank for universal suffrage.

While I’m not convinced that this is a matter of duty rather than “merely” of civic virtue, we should of course be grateful to and honour those to whom we owe our rights. In the case of the right to vote, it is important to remember that our debt is not only to defended our democracy against totalitarianism, but also to those who helped create this democracy in the first place. But there are many ways to honour these people. Exercising the franchise is one of them, but not the only one. Our gratitude cannot ground a duty to discharge our debt to them in this specific way.

Happy 800th, Magna Carta!

Today is the 800th anniversary of the signing of the Magna Carta Libertatum ― or just the Magna Carta, among friends. The Great Charter has been much celebrated, and also derided, of late. In the New York Times, Sarah Lyall does an excellent job of summarizing the competing perspectives. The celebrations tend to emphasize Magna Carta’s role as a symbol of liberty and the Rule of Law. Consider, for instance, that Sir Tim Berners-Lee, the inventor of the World Wide Web, has called for a “Magna Carta” to protect the openness of his invention. (The Economist has a somewhat cheeky take on this today.) The critics point out that this symbolism is largely made up, a 17th-century fabrication. In its own day, the Magna Carta was a miserable failure: King John, who signed the Magna Carta, swiftly proceeded to get the Pope to dispense him from the duty to abide by it. There is not much for me to add, but I would like to venture some thoughts not on the contemporary significance or historical insignificance of the Magna Carta, but on what I take to be two if its timeless lessons.

The first is that the relationship between universalism and particularism in the realm of human rights is very complicated. The Magna Carta includes some clauses that are still cited today because they appeal to us as much as they did to the people of 1215. This is especially true of the injunction (in clause 39) that

[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

In a recent judgment, the Chief Justice of the United States, John Roberts, also alluded to the next clause, whereby King John promised that “[t]o no one will we sell, to no one will we refuse or delay, right or justice.” And while I don’t think the Magna Carta is much cited in this context, the idea of proportionality in punishment that is so important in contemporary Canadian jurisprudence was already there, in clause 20:

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court.

Of course, it is true that, as Carissima Mathen noted in a recent op-ed, “[b]arbaric practices, like public execution and torture, continued apace.” But then, medieval England was not the only place where proclaimed ideals were not exactly matched by actual events.

Still, it is sometimes said that the past is a foreign country. And so it is tempting to think that if the ideals of due process of law were had such an attraction for the people of that foreign place, they are no mere concerns of a particular time and place. They speak to something universal in human nature. So when the governments of places such as Russia or China try to dismiss calls that they abide by these rights as some sort of cultural imperialism, an attempt to impose the neuroses of Western modernity on their nations’ vastly different cultures, we could call their bs.

At the same time, it is undeniable that many of the Magna Carta’s provisions were very much artifacts of their particular place and time ― and the same is true of (just about?) any other rights-protecting document that has followed it. It is difficult for us to believe that the removal of “[a]ll fish-weirs … from the Thames, the Medway, and throughout the whole of England, except on the sea coast” had the same importance as due process of law, but there it is in the Magna Carta, in clause 33. It’s a reminder, I suspect, not all of the or the Canadian Charter of Rights and Freedoms, will appear equally important 80 years after their enactment ― never mind 800.

The other lesson of the Magna Carta concerns the importance of enforcement mechanisms for the limitation of governmental power and the protection of individual rights. It is, I think, seldom mentioned, but the Magna Carta actually included an enforcement clause, clause 61. The mechanism it put in place was, however, very much medieval. The barons were to elect 25 of their number, to whom people who considered their rights to be infringed could complain. Four barons would then go to the king, and if the king

make no redress within forty days, … the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon.

In other words, the only possible remedy for a rights violation was civil war. Which, frankly, seems a bit of overkill for a failure to remove a fish-weir from the Thames ― or even, for that matter, for a corrupt trial. Even if King John had been inclined to abide by the promises he made on the field of Runnymede, it is doubtful that the Magna Carta would have been much of a success. Any good faith disagreement between him and the barons would have led to wars, which would probably have caused people to hate the Magna Carta more than anything ― unless the parties also thought that a fish-weir wasn’t really worth a civil war, in which case the Charter would have become a dead letter anyway.

Perhaps it is then better that things turned out the way they did. It is King John who has gone down in history as the villain of the play, and not the Magna Carta. (Indeed, I cannot help but wonder whether he would have done things differently had he known that signing that document would be his greatest claim to fame!) The Great Charter, free any legacy of being applied ― and perverted ― by fallible human beings, can remain a shining symbol of our beliefs in liberty and the Rule of Law. I, for one, hope that its 1000th anniversary is greeted with at least as much fanfare as the 800th.

Rights and Votes, Again

The Irish referendum on same-sex marriage has brought a common trope back into the public discourse: rights should not be subject to voting. There are actually a number of distinct claims that can be advanced under this heading, although they are often run together, as for instance in this piece by Saeed Kamal Dehghan in the Guardian. These claims range from plausible (although far from certain) to outright silly.

The plausible version of the rights-should-not-be-subject-to-voting position is the claim that rights should not be subject to voting in a referendum. (Perhaps this is the view that Mr. Dehghan really wants to advance in his article, although, as I will explain, this is not very clear.) A referendum campaign may indeed be a poor way of debating about rights. The ignorance of much of the electorate ― which of course goes hand in hand with the prevalence of stereotypes, usually unflattering ones, about minorities ― may make it unfit to decide important issues, even assuming that it is fit to choose representatives who eventually decide them. I have some sympathy for this view; I certainly have no desire to live in a direct, rather than a representative, democracy.

That said, even the claim that issues of rights should not settled by popular vote is both under- and over-inclusive. It is under-inclusive because all sorts of other issues should not be settled by popular vote either, for very similar reasons. I would not want income tax rates set in a referendum, for instance. If anything, rights issues may be simpler, and thus more amenable to resolution by way of referendum, than some policy matters. On the other hand, there seems to be something like an international consensus that secession of political communities is a matter that must be settled by referendum, and secession, as the Supreme Court of Canada has rightly pointed out, necessarily has an impact on minority rights. In short, the issue of whether a given topic can be resolved by referendum, and why, is not an easy one, and we must be wary of rushing to conclusions based on nothing more than hunches.

A stronger version of the rights-should-not-be-subject-to-voting position holds that rights should not be subject to any sort of democratic vote, including that of a legislature. Thus Mr. Dehghan quotes Ayn Rand’s assertion that “individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority.” This claim, in my view, is quite clearly wrong. Legislation enacted in the normal course of governance will often affect rights. Must every bill that could conceivably affect someone’s rights be stopped in its tracks so that a court can rule ― in the abstract, without knowing how the bill would be applied in real life ― on the rights issues it raises? France actually has something like that system, but of course even there, it takes a group of (democratically elected) politicians to refer a bill to the Conseil constitutionnel. (A few years, France has authorized the Conseil constitutionnel to also rule on the constitutionality of a statute after its enactment, on reference by a court.)

Now it is certainly possible to argue that courts, rather than legislatures, should have the last word on issues of rights. But the last word isn’t the same thing as exclusive competence. Legislatures can debate and vote on rights ― as they have long done ― and the courts should be available as a last resort, to respond to legislative abuse or inaction. We should not forget that legislatures have done much for rights. In much of the world, including in Canada, it was legislatures that, for instance, created (almost) universal suffrage, decriminalized homosexuality, or abolished the death penalty. All of this involved individual rights being subject to public votes. Were those votes somehow wrong?

And then, there is the paradox that ought really to be embarrassing to the defenders of the claim that rights should not be subject to democratic votes. Judicial review, which they presumably think the proper mechanism for settling issues of rights, is normally itself a creature of a democratic constitution-making process. The rights which it enforces may (or may not) be natural rights, but they are still recognized, expressly or by implication, in constitutional texts enacted through some sort of democratic process.

The strongest version of the rights-should-not-be-subject-to-voting position is the contention that rights should not be subject to any sort of vote at all. I’m not sure whether anybody seriously thinks that, although Mr. Dehghan concludes his article by endorsing Rachel Maddow’s insistence that “[h]ere’s the thing about rights – they’re not actually supposed to be voted on.” There is no qualification here about who isn’t supposed to vote on rights. On its face, this statement applies to judges as well as to voters and legislators. Yet if it really means what it says, this claim is not just wrong, but actually silly. If people are to live together, issues of rights need to be settled somehow. Negotiation is unlikely to be of much assistance, because there are too many individuals affected. Realistically, there are only two options: legislation, or adjudication. And, as Jeremy Waldron points out in a recent essay which I discussed earlier this week, the latter mechanism, no less than the former, ultimately relies on voting.

The dirty little secret of judicial review ― not much of a secret, really, but something that we try not to think about unless prof. Waldron forces us to ― is that it sometimes leaves issues of rights to be settled by a single person’s vote. That person wears an impressive-looking robe to work, but he or she is still only a human being, and not necessarily a human being of superior wisdom or virtue. The idea of the right of Irish gays and lesbians to marry being dependent on the vote of a popular majority may be unsettling. But is the idea of that right of their American fellows being dependent on the vote of a single 78 year-old man of no discernible towering intellectual abilities ought to be unsettling too.

Here’s the thing about rights ― we disagree about them, as about everything else, more or less. It may be that rights are the inalienable endowments bestowed on us by our Creator. But even if that is so, He has not left us a very clear description of just what it is that He gave us. We have to figure it out for ourselves ― and not just individually, but collectively too. Unfortunately, our ability to figure things out is pretty limited. We set up procedures that are supposed to help us do it, but none of these is fail-safe or fool-proof. As unsettling as they may be, they may also be the best we can do, at least at this point in our history.

Entrenching and Expanding Rights

In an interesting post over at Concurring Opinions, Renee Lerner discusses the history of the constitutional protection for trial by jury, including in civil cases, in the United States, and suggests that this history holds a cautionary lesson. Prof. Lerner highlights the importance which the common law heritage and the purported “immemorial” “rights of Englishmen” associated with it had for the Americans of the Revolutionary period. These rights were thought to have been codified in the Magna Carta ― and “[t]he right Americans most often invoked in connection with the Great Charter was the right to trial by jury.” This, as prof. Lerner explains, was in no small part a myth: “The barons at Runnymede,” when they forced the Magna Carta on King John,

certainly did not intend to enshrine common-law trial by jury, which did not exist for criminal cases in 1215 and hardly for civil cases. In the language of Chapter 39 concerning “judgment of his peers,” the barons were trying to ensure that they would be tried by other barons, not by royal judges or ordinary juries.

But no matter. In the 17th century, Lord Coke and others fabricated the “myth” of an ancient right to trial by jury, and their ideas were immensely influential in America. Partly for this reason, and because “Americans of the colonial and revolutionary era also exalted the jury, as a means of furthering self-governance and nullifying despised British laws,” they entrenched it in many State constitutions and, eventually, in the Federal one.

For prof. Lerner, this was a very unfortunate mistake, for “the self-governing and law-nullifying functions of the jury came to seem unnecessary at best and often harmful.” Trial by jury, she writes, “chang[ed] from a prized right of the people to a nuisance.” And in her view, this history demonstrates the superiority of the flexible British constitution, which lacks entrenched rights. When a right becomes a nuisance, it can simply be got rid of.

Now to me this seems, to be sure, to point to a cost of rights-entrenchment ― but this cost is very much a feature, not a bug. Indeed, it might be the most important feature of them all. A major part of why Americans and, increasingly, other nations (including, of course, Canada) chose to entrench rights is precisely so that they cannot be discarded whenever a majority thinks that they have become a nuisance. (I don’t know whether most Americans actually think that jury trials are a nuisance. But let’s assume that they are.) It’s not just trial by jury ― the same goes for every right entrenched in every constitution in the world. We should be aware of the perils of inflexibility, but I don’t think that they are enough to make the case against entrenching rights. And it is worth noting that they can be addressed by somewhat more flexible constitutional amendment procedures than that of Article V of the U.S. Constitution or Part V of the Constitution Act, 1982 (though its inflexibility is as much a product of politics as of the rules it contains), without abandoning entrenchment altogether.

What I think is a more interesting aspect in prof. Lerner’s story is one that she does not dwell on ― the expansion of the right to a trial by one’s peers from the nobility to the entire citizenry. In a way, this story is unremarkable. As Jeremy Waldron persuasively argues, it is the story of the idea of dignity ― an exalted status once reserved to kings and noblemen, but now attributed to all human beings. It is also the story of the right to religious liberty, which was at first only afforded to Protestants in England, and then expanded to embrace other familiar religious groups (such as Catholics and Jews), and later still the less familiar ones (such as Jehovah’s Witnesses) and the unbelievers. It is the story of the franchise, first the preserve of propertied men, and then expanded to the middle and working classes, to women and, in Canada at least, to prisoners and other groups that it traditionally excluded. We usually see these and other expansions of rights as unequivocally good. They have obvious upsides for the people who benefit from them and arguably for society as a whole, and ― so our conventional thinking goes ― no obvious downsides. Some people would beg to differ, but we tend to regard them as retrograde and bigoted. It is here that the story of the right to a jury trial might serve as an interesting cautionary tale.

If jury trials involved, both as parties and as jurors, only a narrow class of wealthy and, for the most part, not very busy people, they would not be the “nuisance” prof. Lerner describes. For one thing, the barons who demanded and obtained the right to be tried by their peers knew enough about each other’s affairs (if not specifically, then at least about the sort of life people of their social class led) to serve as reasonably effective triers of facts. They did not have, over the course of a trial, to understand the complexities of a line of business (or even, for that matter, of the functioning of a criminal gang,) For another, underpaying them for their work, or indeed not paying them at all, wasn’t the problem it is for jurors today (not only in the United States, of course). As much as the advent of the “representative republics” and the “commercial society,”  the expansion of the right to a jury trial, and the concomitant right and duty to serve on juries, to all citizens is the reason this right might be problematic today. (Incidentally, I should make clear that I do not express a definitive opinion on whether it is; at least in criminal matters, I’m tentatively inclined to think it is a useful safeguard.)

The story of the right to a jury trial might thus show that expanding a right from some citizens to all can cause significant problems in at least some cases. Of course, even if we agree with this interpretation of the story prof. Lerner tells, we need not come to the same conclusion regarding any other right. Each case must be assessed on its own merits. But we probably should at least acknowledge the possibility.

No Room for Housing Rights

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

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

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

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

On the remedies side,

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

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

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

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

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

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

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

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

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

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

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

Quasi-Meaningless

In one of my very first posts, I wondered what the Supreme Court meant by describing a statute, or a common-law right, as “quasi-constitutional.” I concluded that this description probably did not mean anything substantial, and was little more than an indication that the Court considered the statute or right in question as very important. Its decision yesterday in Thibodeau v. Air Canada, 2014 SCC 67, is further evidence for that proposition. The main issue in Thibodeau was whether the limitation of an airline’s liability for “damages” to its passengers set out in the so-called Montreal Convention, an international treaty dealing with commercial air travel and made part of Canadian law by the Carriage by Air Act, prevented the Federal Court from making an award of damages for Air Canada’s violation of its duties under the Official Languages Act.

A large part of the majority’s decision, and the dissent, are concerned with the issue of whether the Montreal Convention applies to an award of damages made under a statute such as the Official Languages Act, rather than a more traditional claim (say for injury or lost luggage). Justice Cromwell, writing for a five-judge majority concludes that it does, based on his reading of the Convention’s text, his understanding of the Convention’s purpose, and his review of foreign decisions. Justice Abella’s dissent (with which Justice Wagner agrees) comes to the contrary conclusion. I will not deal with the interpretation issue here.

What I want to briefly focus on ― though don’t expect any deep thoughts here ― is the subsequent issue of the interplay between the Montreal Convention and its implementing legislation, and the Official Languages Act. Subsection 77(4) of the Act gives the Federal Court the power to “grant such remedy as it considers appropriate and just in the circumstances” for violations. This is obviously a very broad grant of remedial power, and it would normally include the possibility of awarding damages. So having concluded that the Convention purports to exclude such awards of damages, the majority must decide whether the “quasi-constitutional” Official Languages Act trumps this exclusion.

To answer this question, Justice Cromwell says, one must first determine whether the Montreal Convention and the Official Languages Act actually conflict. Only if they do will it be necessary to determine which is to prevail. When legal rules merely “overlap in the sense that they address aspects of the same subject, they are interpreted so as to avoid conflict wherever this is possible” (par. 89). Justice Cromwell concludes that there is no conflict here, because subs. 77(4) of the Official Languages Act and the Montreal Convention can be reconciled by not interpreting the former as requiring damages to be available in all circumstances (and, in particular, when such an interpretation would conflict with Canada’s international obligations). Justice Cromwell points out that “[c]ourts are … slow to find that broadly worded provisions were intended to be an exhaustive declaration of the applicable law where the result of that conclusion creates rather than avoids conflict” (par. 99). They are also reluctant to conclude that there exists a conflict between provisions enacted for different purposes. These considerations apply here.

The appellants and the Official Languages Commissioner, however, argued that because the Official Languages Act is quasi-constitutional, it must be taken to apply fully, allowing for no “reconciliation” in the case of an “overlap.” Justice Cromwell acknowledges the “quasi-constitutional” status of the Official Languages Act, and says that it “should be interpreted generously to achieve its purpose” (par. 112), but holds that “[t]hese factors, however, do not alter the correct approach to statutory interpretation” (par. 112) ― which is the same as for all other statutes. For Justice Cromwell, the Act, “read in its full context, demonstrates that Parliament did not intend to prevent s. 77(4) from being read harmoniously with Canada’s international obligations given effect by another federal statute.” Subsection 77(4), Justice Cromwell adds, is “broad and general” rather than “an exclusive and exhaustive statement in relation to the Federal Court’s remedial authority …  overriding all other laws and legal principles” (par. 113). Other remedies remain available against Air Canada, while the Montreal Convention does not restrict the availability of damages against anyone else. The provisions can be made to work together without either losing its meaning, so there is no conflict.

This may be a sensible outcome, though I find it difficult distinguish what Justice Cromwell does from an application of the principle that lex specialis derogat generalis ― a specific law applies in derogation of a broad one ― which is of course one way of resolving conflicts between statutes rather than of “harmonizing” them. And it is a way of resolving conflicts that is specifically excluded by  subs. 82(1) of the Official Languages Act, which provides that its Parts I-V “prevail to the extent of the inconsistency” with any other act of Parliament. But even taking Justice Cromwell’s reasons at face value, they very strongly suggest that a statute’s “quasi-constitutional” standing is in reality, quasi-meaningless.

An Online Bill of Rights?

Just a quick note to let my readers here ― those, that is, who avoid my shameless self-promotion on social media ― know about my new post for the CBA National Magazine’s blog. Taking up Yves Faguy’s invitation (at Slaw) to discuss whether “we need a global digital bill of rights.” Drawing on a paper I wrote last year and presented (to mostly perplexed and sceptical audiences) at a couple of conferences, I make a Hayekian argument against this idea. In my view, an attempt to codify the rights that we ought to have online is unlikely to succeed for the foreseeable future. Both the technology and the social, contractual, and legal norms that define the online world change too quickly for any attempt to impose on them a rigid constitutional framework not to produce perverse, innovation-stifling consequences.

Mammon & Co.

I have already blogged about the question whether corporations can assert religious rights, for example to ask for exemptions from generally applicable laws if these laws contradict their ― or their owners’ ― religious beliefs. In a decision issued this morning, Burwell v. Hobby Lobby Stores, which Eugene Volokh summarizes here, the Supreme Court of the United States answered that question in the affirmative. Because this case  has attracted a great deal of attention and commentary, it is a good occasion to come back to the question of “corporate religious freedom,” although, as usual, I do not express an opinion as to the correctness of the Court’s decision as a matter of U.S. law. My concern is with first principles.

According to Justice Samuel Alito, who wrote the majority opinion, recognizing and protecting corporations’ religious rights serves

to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment  protection [against unreasonable searches and seizures] to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. (18)

And protecting corporations’ religious freedom “protects the religious liberty of the humans who own and control those companies.”

Indeed, the U.S. government was prepared to respect the religious beliefs of some corporations ― those whose mission was not primarily to make a profit for their owners. The issue of corporate religion in Hobby Lobby was thus not whether any corporations could have religious beliefs entitled to protection, but rather where, if anywhere, to draw the line between those who could have such beliefs and those which could not. The government (and the dissent) argued that the line should be drawn at the making of profit. The majority questioned why this should be so, pointing out that prior cases acknowledged the capacity of profit-making businesses (albeit not organized as corporations) to bring religious claims, and noting that

modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval,support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. (23)

The majority opinion, however, suggests a line of its own, between “closely-held” and publicly traded corporations. At least, it purports only to consider the situation of closely-held corporations, suggesting that the question of corporate religious rights is very unlikely to arise in the case of “corporate giants” (29) or publicly traded corporations more generally.

Does either of these dividing lines make sense? Or should all corporations be considered capable of making religious claims? Or should none?

In a post on Bleeding Heart Libertarians, Jacob T. Levy is skeptical of the U.S. Supreme Court’s reasoning. He thinks that whatever rights corporations have, they have them as distinct legal persons, rather than as extensions of their owners:

the corporation qua property owner has, for example, 4th Amendment rights against its property being unreasonably warrantlessly searched, and 5th Amendment rights against it being taken for public use without compensation, or against being deprived of it without due process of law. …

To say that “corporations are made of people” is to make “a different point, nearly the opposite point, from saying that they are themselves persons.” The reason the Court makes this point is that, unlike for other rights, it doesn’t make sense to say that corporations have religious rights. These rights only make sense if they belong to individuals, the corporations’ owners. But that makes the claim of corporate rights contrived. In short,

[c]orporations are persons, or corporations are made out of people– the two thoughts lead to very different conclusions, and I think protecting the former requires rejecting this kind of easy recourse to the latter.

By contrast, over at the Volokh Conspiracy, Ilya Somin endorses the Court’s logic. For him, “[t]he fundamental point here is that people organized as corporations are people too.” Indeed, in his view, this logic extends to all corporations, and not just closely-held ones, as does the protection of other rights.

I too think that the distinction between closely-held and publicly traded corporations should not matter for defining the rights which corporations should be able to claim. As I suggested here, in response to a paper by Burt Neuborne arguing that closely-held but  not publicly traded corporations should have the right to engage in political speech, it would be strange if a corporation lost some rights upon filing an IPO and could then reacquire these rights upon being bought out by a private equity firm. “Rights, we generally think, are universal, if they exist at all.”

And, at least if we insist on speaking in terms of rights rather than limits on government action, I agree with prof. Somin that corporate rights are primarily the rights of individuals. I’m not sure I fully understand prof. Levy’s objection to this approach, but it seems to me that while  we are used to speaking of the freedom of expression of the New York Times, there really is, as I suggested in the post just linked to, “something puzzling about a purely legal entity, ‘a nexus of contracts,’ with no mind or personality of its own, having ideas to share.” The puzzle, indeed, is no less than in the case of a purely legal entity which, instead of producing newspapers, runs a church or, say, a religiously-compliant slaughterhouse. In all these cases, corporations themselves have no real moral claims; they have no personality of their own, no dignity, no liberty that we should care about. Corporate rights protect the rights their shareholders, and probably other stakeholders too (I have suggested otherwise in the past, but I am now inclined to think that I was wrong to exclude other stakeholders here).

These rights matters because in going to the marketplace ― whether as businessperson or as an employee ― one does not leave one’s personality behind. One does not surrender one’s identity or one’s beliefs. We recognize this, for example, when we insist that the law protect employees from having to do so, through anti-discrimination provisions. It is only right that people who go into business rather than become employees also be allowed to continue worshipping gods other than Mammon.

Danger in Definition

I blogged some time ago about the difficulties that courts face when trying to define religion. In a recent interview, Judge Guido Calabresi (of the U.S. Court of Appeals for the 2nd Circuit), makes some interesting comments about this issue. (Most of Judge Calabresi’s interview deals with the case of Town of Greece v. Galloway, which I discussed here; however, I am not sure I follow his argument, so I will say no more of it. What I am interested in here are the last three paragraphs of the interview.)

Judge Calabresi points out a paradox regarding legal definitions of religion. To implement a law (for example a constitutional provision, such as the First Amendment to the U.S. Constitution) which protects religion, you need a definition of what religion is. You need to know what it is that you are protecting. Yet defining what is, and what is not protected can have perverse consequences:

the moment one defines religion, and the stronger the First Amendment protections to religion are, the more those things that are outside the definition are thrown outside of Constitutional protection.

Judge Calabresi points out that this problem is not unique to religion ― it is the same thing with speech. But human experience in the religious realm is not easily amenable to sharp distinctions:

If you have a clear definition of religion, then what is outside that definition are “cults” and get no protection at all. This says to some people, “What you believe in is outside the Constitution,” and to say that is a very dangerous thing. For, when you say that something people believe in is outside the Constitution, you force people to do one of three things. One: to go in the streets and try to change the Constitution. (Which we’ve seen as to some things … ) Or two: to drop the belief that made them a cult, which is what happened with the Mormons and polygamy. (This, however, is very dangerous because those who have been forced to abandon their belief, are then quite understandably likely to say, “When we’re in the majority, we can impose our view on others. You told us we couldn’t do certain things, then, when we think that there are some things that others do that are immoral, we can do the same.”) Or, finally, you get some “believers” who become outlaws. (And every five or six years The New York Times will write an article about these “horrible” people who are living somewhere or another and doing this and that which is wrong and “cultish.”)

So here you go. Sometimes you can’t avoid defining religion; but the more precise your definition, the more problems you will generate in the medium- and long-term.

I think this is an important point, and it applies not only to wholesale attempts to distinguish between religion and “cults”, but also to more “retail-level” attempts to distinguish religious rituals from cultural practices. Trying to draw such distinctions ― as, for example, many of the people who advocate in favour of more or less extensive bans of Islamic headscarves do ― would lead to the same problems that Judge Calabresi describes ― demands for constitutional protection of cultural, as well as religious, rights; a replacement of the live-and-let-live attitude with a winner-take-all one, with the ensuing deleterious consequences for the political process; or withdrawal from society (which is the most likely consequence when the group whose practices are being outlawed is small and weak).

The lesson, I think, is that we might do well to learn to live with our vague understandings of what religion is. Or, at least, we need definitions that are open-ended and flexible, so as to accommodate new cases, without expecting them to conform to patterns set by the old. That, of course, is if we care about religious liberty. Those who don’t can read judge Calabresi’s argument as support for a strategy towards which they are already intuitively gravitating.

#SochiProblems

There has been a great deal of talk over the last several months about the way one ought to react to the Olympics in Sochi in light of Russia’s ban on “propaganda of homosexuality” or whatever Russian prosecutors construe as “propaganda of homosexuality.” People have, in order of decreasing glamour and increasing effectiveness, boycotted a vodka which turned  out not to be made in Russia at all, raised rainbow flags, and made other, more sensible suggestions. But it seems to me that, although a lot has already been and is still being said on the subject, an important element is missing from this conversation. It is the fact that, while the “propaganda” ban certainly is homophobic, its underlying cause is authoritarianism as much as, if not more than, homophobia. What this means is that to really help Russian gays and lesbians (and all other Russians too), we must not only criticize and support the victims of a specific law, but the whole system of Vladimir Putin’s government.

Now this is not to say that this criticism and support are unimportant. People suffering as a result of the “propaganda” ban, and perhaps even more because of the wave of discrimination and violence that this signal of official homophobia has helped unleash. I would like to think that, for them, knowing that the world cares is at least a small consolation and source of hope. And the overt, shameless callousness of this law deserves its own response.

Nor do I mean to suggest, by saying that the “propaganda” ban is the product of authoritarianism, that a free Russia would a very gay-friendly place. Unfortunately, it would be no such thing. Freedom, democracy, and the Rule of Law are not enough to eliminate at a stroke the latent prejudices of society. But they do tend to make it rather less likely that these prejudices will translate into official policy, or that the authorities will let them run loose to the extent homophobia now does in Russia. Of course, there are some sad exceptions to this general trend, as Québec’s proposed ban on public employees wearing “ostentatious religious symbols,” which is calculated to discriminate against minorities (and especially Muslim women) and which Charles Taylor has rightly compared to the Russian anti-gay law, demonstrates. Still, such laws are both rarer and generally less malign in democratic countries. As, or more importantly, as I will shortly argue, free, democratic countries committed to the Rule of Law give their citizens the tools to fight and, at least over time, overturn those discriminatory measures that they do enact.

The reason Mr. Putin’s authoritarianism is key to understanding and deciding how to respond to the “propaganda” ban is that this law and the prominence of homophobic discourse more broadly are quite recent phenomena. What is not recent ― what has lasted for more than a decade now ― is a trend of small, unpopular groups being persecuted, whether with the active participation or with the silent connivance of officials. First ― before Mr. Putin even was elected President, there was the population of Chechnya, made the victim of a war designed to bolster his (theretofore nonexistent) credentials. Then (and to this day), it was political opponents and independent journalists. A businessman who supported opposition political parties imprisoned. Journalists who reported on human rights violations murdered. The rare media that still remain independent being denied access to their audiences. But then there were other victims. Later and still now, it was ethnic and racial minorities ― first African students, then immigrant workers from central Asia, who the victims of campaigns of murderous brutality, which the authorities have seldom done much of anything to stop. Gays and lesbians are only the latest on the list of the enemies of the Russian state. For a government that lacks the legitimacy that comes from prevailing over political opponents in a fair electoral contest (or indeed for one, like the PQ’s, which is committed to democracy but knows that its electoral prospects are dim), having enemies is probably indispensable to manufacture popular support. The enemy’s identity matters little, provided that he is weak and unpopular. In Russia, liberals, ethnic minorities, and LGBT people all are.

For this reason, and although, as I said above, it is important to oppose the “propaganda” ban and other forms of discrimination against gays and lesbians in Russia, the real solution to their problems must pass by the (re-)establishment in Russia of a free and democratic political system committed to the Rule of Law. Only such a system will not need to make minorities into scapegoats for its shortcomings and prejudice against them the only rallying point it can offer the people.

In addition, such a system would, unlike the present one, allow gays and lesbians ― as well as all other citizens, whether persecuted in their individual capacities or as members of unpopular groups ― to fight back and vindicate their rights. At present, it is not only equality that is absent from Russia. It is also, among many other rights and freedoms, freedom of expression and an independent judiciary. Yet as Jonathan Rauch argues in a fascinating and important guest-post at the Volokh Conspiracy, “[h]istory will show …  that gay marriage, and gay legal equality generally, owe their success not primarily to the 14th Amendment but to the First” ― not the one protecting equality, but the one protecting freedom of speech. The reason is simple: in order to have equality, you must persuade people to recognize you as their equal. You need to be able to speak to them. You need the freedom to make your case. And before you can insist on rights which on paper are yours, you need judges to know that nothing particularly bad will happen to them if they enforce them.

Once Russian gays and and lesbians have these basic rights, which (unlike equality rights which are of more recent vintage) we perhaps take so much for granted that we forget that others might lack them, we can hope, and indeed believe, that they too will in time succeed in having their equality rights recognized. Let us denounce and oppose homophobia. But let us not forget that, in Russia and elsewhere, it will not end without freedom, democracy, and the Rule of Law.