rights – Page 2 – Double Aspect

Doing Right on Rights

Why the Supreme Court was right to find the disenfranchisement of Canadians abroad unconstitutional

In my last post, I summarized the majority, concurring, and dissenting opinions delivered in Frank v Canada (Attorney General), 2019 SCC 1, which held that the denial of the franchise to Canadians who have resided outside the country for more than five years is unconstitutional. As noted there, I believe that the majority, whose opinion was delivered by Chief Justice Wagner was correct so to hold. In this post, I explain why, and also make some observations about the strongly-worded dissent by Justices Côté and Brown. To make my biases clear once again, I remind readers that I am a Canadian abroad myself, and have been for six of the past eight years. While I vote rarely and reluctantly, I am emotionally invested in the issue of whether my right to do so can be taken away. Feel free to discount the following accordingly.

While I am the subject of emotions, let me say this. Justices Côté and Brown assert that the denial of the right to vote to Canadians abroad “is not a distinction based on moral worth”. [168] By my lights, that’s precisely what it is. On their own view, it is the product of “normative conceptions of what the Canadian political community is, and how it can best be protected and made to flourish”. [139] The conception embraced by Parliament in enacting the provisions invalidated in Frank sees the Canadian political community as excluding Canadians abroad, who are consequently less worthy of the franchise. Indeed, they are, according to the dissent, a threat from which the community must be protected, since it is “unfair to Canadian residents for their lawmakers to be elected by long-term non-residents who have no connection of any currency to their electoral district”. [153]

This is utterly wrong. As the Chief Justice rightly observes, many Canadians who live abroad maintain strong ties with Canada (and, I would add, often with the local community where they used to live and, in many cases, intend to return). As the Chief Justice also says, “[c]onversely, there may be citizens who have never left Canada but whose subjective commitment to the country is much weaker and who are less well versed in local issues”. [68] Indeed, though it would be impolitic for a judge to say so, “may be” in this sentence should read “obviously are”. As, for example, Ilya Somin and Bryan Caplan respectively have shown, voters are both ignorant and irrational ― rationally so, but ignorant and irrational all the same. Yet we would not generally accept disenfranchising voters on that basis; we do not inquire into the degree of connection a voter has with his or her local community, or the country, before issuing him or her a ballot paper. It is only, it seems, in the case of expatriates that these things actually matter. To me, this is strong evidence that what is at work here is not really a concern with the fairness or integrity of Canada’s electoral system, but a judgment, or rather prejudice, about the moral worth of those Canadians who are taken to have left the community, and must “rejoin[]” [153] before being allowed to take part in the community’s affairs.

Now, it is true that most Canadians abroad do not, in fact, go to the hassle and the expense of requesting a special ballot and returning it to Elections Canada. This means, of course, that the idea of non-resident voters swamping elections and deciding them at the expense of residents is far-fetched if not entirely implausible. But more importantly, as the Chief Justice points out, this means that those who do take the trouble value their involvement in Canada’s political life ― probably more so than a great many of their resident fellow-citizens. In the Chief Justice’s words, they “demonstrate[] a profound attachment to Canada”, [75] and it seems absurd to pretend otherwise on the basis of no evidence whatsoever.

This brings me to another issue: that of the correct approach to deciding whether legislation is unconstitutional because it unjustifiably contravenes the Canadian Charter of Rights and Freedoms. Justices Côté and Brown issue what they regard as a profound challenge to the way we not only discuss but also think about the relationship between Charter rights and policies that interfere with them. They note that it is commonplace to speak of such policies as “infringing” or even “violating” rights, only for these “infringements” or “violations” to be upheld, or “saved” by applying section 1 of the Charter. Yet, as they further point out, section 1 provides that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” ― limits, not infringements or violations. So we should stop talking about justified infringements, and talk about limits instead. The majority is not interested, observing that the words “limits” and “infringements” have long been used interchangeably. (The Chief Justice is probably too polite to note this, but I am not: Justices Côté and Brown themselves spoke in terms of “infringement” as recently as seven months ago, in their excellent dissent in Law Society of British Columbia v Trinity Western University, 2018 SCC 32.)

I take the dissent’s textual point. The word section 1 uses is “limits”, and it arguably makes more sense to say that the state can justifiably limit rights, not that it can violate them. But I fail to see what great change to the way we actually think about rights and scrutinize the state’s possible interference with them follows from this. Contrary to some, indeed quite a few, of the participants in this blog’s recent 12 Days of Christmas symposium, Justices Côté and Brown show no interest in reconsidering the test for verifying the permissibility of limitations on rights that was first set out in R v Oakes, [1986] 1 SCR 103. They apply the same proportionality analysis, warts, subjectivity, and all, under the label of assessing the “limit” on the right to vote as the majority does when considering “infringement” of this right. They have much to say about the fact that the right to vote is a “positive” one, requiring legislation to “breathe[] life into” it, [142] but that it is true of many of the rights the Charter protects (notably, but by no means only, the various rights of criminal suspects and accused) and, more importantly, it simply does not follow that the legislation that “breathes life into the right” may not fail to do so to a constitutionally required standard. (Similarly, Justices Côté and Brown point out that the legislation imposing a five-year expiry period on expatriates’ franchise replaced that which gave no expatriates the vote. So what? The test of constitutionality is not whether Parliament comes closer to respecting the Charter than it once did, but whether it respects the Charter now.)

The real methodological disagreement between the dissent and the majority (as well as Justice Rowe’s concurrence) has to do with the level of deference each accords Parliament. The majority insists, at the outset, that “[a]ny limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification”. [1] Although, as noted in yesterday’s post, it later wavers a little on this point, its approach is, indeed, one that refuses to take the government’s claims about the need for or usefulness of the legislation it examines on faith. By contrast, the dissent waxes deferential, “eschews rigid and technical application” [124] ― it’s not quite clear of what, but presumably of the justification requirements ―, and plays up “Parliament’s policy-making expertise”. [126]

Yet here the dissenters’ professed textualism fails them. To repeat, section 1 of the Charter says that “only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (emphasis mine) can be countenanced. The constitutional text, therefore, requires a demonstration ― not judicial acquiescence on the basis that Parliament knows best. And this requirement, in turn, suggests that contrary to what Justices Côté and Brown say Charter rights can only be limited in order to deal with an identifiable problem, to address some specified mischief, and not merely because a legislature thinks that in an ideal political community these rights would be limited in this way. The enactment of the Charter, as a law superior to ordinary legislation, has taken that moral judgment out of the Canadian legislatures’ hands. (To be clear, this is a separate question from that of the permissibility of what used to be called “morals legislation”, which proscribes what the legislature sees as immoral behaviour, such as taking drugs. There is no argument that expatriates act immorally by voting.)

In short, by all means, let’s be careful with our language, and speak of reasonable limits on rights instead justified violations. But let’s also insist that limitations on rights, to qualify as reasonable, must be ones whose justification is capable of being demonstrated, rather than merely asserted, and is in fact demonstrated, rather than taken for granted. Indeed, I think that this substantive concern is rather more important than the semantic one. In Frank, it is the majority, not the dissent, that follows an approach that is closer to that required by the constitution.

In my view, the majority decided Frank more or less as it should have. It correctly insisted that any exclusion from the franchise except the one based on citizenship must be justified. Contrary to the dissent’s strident warnings, it does not follow that no exclusions could ever treated as reasonable limits ― only that the justification process for upholding these limits cannot be elided by saying that some limits on the right to vote must obviously be admissible. This goes even for the denial of the right to vote minors (which, as Ilya Somin, for example, has argued, is not as self-evidently reasonable as the dissenters would like us to think). I think that it would be quite easy to sustain the disenfranchisement of three-year-olds, the dissent’s scaremongering example, should anyone challenge it; but as for the denial of the vote to teenagers, I for one wouldn’t mind seeing the governments put through their justificatory paces.

The majority is also right to be skeptical of the government’s arguments based on an ill-defined “social contract” of which expatriates are allegedly no part. I’m not too impressed with the Chief Justice’s definition of Parliament’s objective in terms of “fairness” ― fairness is too capacious a word for my liking, and the dissent’s suggestion that Parliament was pursuing a currency of relationship between the voter and his or her community seems closer to the mark. But one should also acknowledge that objectives that are largely symbolic (or, as Justices Côté and Brown see it, moral) do not lend themselves to easy definition, and so inevitably compromise the quality of the Charter analysis. The majority’s skepticism about the existence of a rational connection between the objective of fairness and disenfranchisement of Canadians abroad is also warranted. Indeed, I would have liked the Chief Justice to have been bold enough to say that, given both the possibility that expatriates maintain current links with Canada and their Canadian communities, and the lack of any assessment of whether any other voters do so, disenfranchising expatriates alone based on their deemed lack of connection to Canada is actually irrational. But the Chief Justice is not the first judge not to want to go there.

I’ll live with that, because the Chief Justice ends up making the right arguments at the “minimal impairment” stage of the analysis. Like I had in criticizing the decision of the Court of Appeal for Ontario in this case, he points out that Canadians abroad can and do maintain close links with Canada; that they are affected by Canadian laws and government policies; that, moreover, “Parliament can change laws on its own initiative and thus alter the extent to which Canadian legislation applies to non-resident citizens”, [72] so that one cannot invoke the limited scope of current extra-territorial legislation to deny expatriates the vote ― I had called this “let[ting] the statutory tail wag the constitutional dog”; and that in any event “attempting to tailor Charter rights to the extent to which citizens are burdened, or not burdened, by Canadian laws would be an impossible exercise”. [71] If all this is not enough to qualify the disenfranchisement of expatriates as irrational, than it certainly suffices, as the Chief Justice says, to show that it is grossly overbroad, and not “minimally impairing” of the right to vote.

The Chief Justice’s reasons are not perfect. He does, as the dissent points out, get somewhat carried away in patriotic praise for the Canadian democracy, and there are shades of what I’ve been calling “constitutionalism from the cave” in his claim that “a broad interpretation of” the Charter‘s guarantee of the right to vote “enhances the quality of our democracy and strengthens the values on which our free and democratic state is premised”. [27] Constitutional interpretation must aim at ascertaining the text’s meaning, not at strengthening values or anything of the sort. Still, what the Chief Justice’s opinion for the majority does is substantially in line with the constitutional text, despite its rhetorical imperfections. (And still on the subject of rhetoric, or style: can someone please ask the Chief Justice and his colleagues to stop using the initialism “AGC”? It is a recent innovation ― the Court hadn’t done it at all before 2010 ― and not a good one. It is ugly and has a jargon-y feel that is quite at odds with the Chief Justice’s stated desire to make the Court’s work more accessible, including to laypersons.) But as majority opinions of Supreme Court have gone in the last few years, the one in Frank is up there with the best.

The Supreme Court has held that Canadians who live abroad cannot be disenfranchised based on, in effect, stereotypes about their lack of relationship with their home country. This is a relief. In doing so, it has insisted on carefully and critically examining the government’s claimed reasons for limiting Charter rights, and this is a good thing too, one that doesn’t happen often enough. There is something to learn from the dissenting opinion, too, about our constitutional vocabulary, and I hope that this lesson is not lost just because the substance of that opinion is bitterly disappointing. But the constitution was upheld in Frank, and so right was done. May 2019 bring more of that.

The Bowels of Administrative Law

Administrative guidelines that make it difficult to challenge the administrative state.

In the United States, the Administrative Procedure Act governs federal administrative decision-making. Among other things, the APA prescribes a number of minimum standards for what I call the “bowels” of administrative law—the ugly business of rules, regulations, and guidelines adopted under statutory authority that touch the everyday person. For example, when an agency promulgates rules made pursuant to congressionally delegated authority, the agency must provide the public with adequate “notice and comment” procedures, calibrated to the importance of the rule. On the other hand, rules that are merely policy or interpretive guidelines are generally not subject to notice and comment procedure. When an agency, however, exercises its delegated powers, it must provide adequate notice and comment.

In my view, the APA provides some acknowledgement that internal agency guidelines, even procedural ones, could impact substantive rights. It presents a supralegislative standard that certain procedural guidelines must meet if there is a chance that the rights and interests of citizens could be impacted. This, to my mind, is the primary function of the notice and comment procedure. It gives citizens the right to have a say on the sorts of rules that may adversely impact their ability to challenge administrative action. It is an attempt to reconcile the deep constitutional challenge of the administrative state with the rights and freedoms of individuals.

In Canada, on the other hand, little academic work focuses on the sort of internal agency guideline I’m concerned with—putatively procedural guidelines, adopted under statutory authority, that could have a significant impact on the ability of claimants to challenge administrative action. This could leave administrative decisions insulated from challenge. Putting aside the historical work of John Willis, a notable recent exception is the work of Lorne Sossin, who in a series of articles fleshes out a framework for classifying the wide gamut of agency guidelines and directives that could structure the broad statutory discretion of an administrative decision-maker. Professor Sossin has done a service in this regard, and I can do no better than a piece by Professor Sossin and France Houle. But I merely wish to underline a point made by Professor Sossin and Houle. In Canada, we have not grappled with the role that procedural guidelines could play in impacting the ability of citizens to challenge the state. Relatedly, we have not addressed what role citizens should and do play in the formulation and adoption of these guidelines.

From one perspective, agencies empowered by legislatures can be seen as operating in a deeply democratic space to which courts should defer. By that, I mean that agencies particularize democratic mandates adopted by the legislature in a way that the legislature simply cannot. Agency guidelines can develop the legal order or fill gaps in it. Much like a principal-agent relationship, the agency stands at the “hard end” of administrative law, achieving the legislature’s goals while efficiently and expertly managing disputes. As Metzger and Stack argue, we must view this business of administrative law as “administrative government” in an “administrative world”—these tribunals are fundamental parts of the law-making state in the modern world. It follows that overbearing “legal” norms should not be used to disincentivize the development of agency and policy guidelines.

But we know in Canada that, even when acting pursuant to statutory authority, administrative decision-makers do not have free rein. According to Roncarelli, there is no such thing as untrammelled discretion that can operate without regard to some intelligible statutory delegative principle. At the same time, beyond this general proposition, there is no general doctrinal guide for when courts should be skeptical of internal, procedural guidelines that could impact on the ability of litigants to challenge administrative action–with or without adherence to a statutory delegation.

A statute, for example, that delegates an agency the full power to develop rules of evidence leaves a great deal of discretion to the agency to decide on the sort of disclosure it must grant a claimant. Short of a constitutional challenge based on the case to meet principle and principles of fundamental justice, an agency could limit the disclosure of evidence to a claimant. This might seem benign. But it could make more difficult challenges to administrative action because a claimant may not have the best evidence to challenge the administrative decision. The effect? Less investigation of administrative action.

Standing rules are a better example. The legislature could delegate broad power to an agency to determine who has standing to challenge decisions. Any procedural rule adopted under this broad authority could be legal, but that same rule could pose problems for other rights and interests. On one hand, if the agency adopts a liberal standing rule, more claimants will be let through the door and have the ability to hold agency decisions to account. Such a rule would exact a cost in the coin of agency resources, and that alone may impact the ability of the agency to efficiently respond to other complaints. On the other hand, a restrictive standing rule exacts a cost in a very different currency: the rule of law. If, under broad statutory authority, an agency adopts a standing rule that permits the denial of standing to many claimants, an administrative decision could be practically immunized from review. The concern is that the administrative state could use the statutory authority it has been given to entrench its own power or the power of stakeholders. In such a situation, an agency could insulate itself from meaningful review while still acting within the four corners of a statute.

This is not a hypothetical situation. In Delta Air Lines v Lukacs, the Supreme Court recently dealt with the Canadian Transportation Agency’s interpretation of its own rules for standing, governed by a broad statutory authority. In that case, it did not appear that the Agency adopted a written rule for the situations in which it would grant standing. But it did adopt a particular version of the common law test for standing that made it more difficult for claimants to challenge the Agency’s action. While the Supreme Court held that this version of the common law test was inconsistent with the Agency’s enabling statute, what about a case where there is a restrictive standing guideline that is consistent with the enabling statute? In such a case, many claimants could be excluded. And the worry is that an agency could be insulated from review based on an arbitrary guideline.

The difficulty of addressing this problem should not be understated. In fact, this may not even be a “problem” that can be addressed through the courts. As noted above, the use of so-called “soft law” can be placed on a spectrum. As KC Davis noted in his important work, Discretionary Justice, we could have mere policy directives moving along into quasi-legislative rules. On the former end of the spectrum, such guidelines may not have the force of law. Even quasi-legislative rules that as Sossin and Houle note could develop or interpret the legal order may not themselves be justiciable. If these guidelines are adopted within the bounds of statutory authority, what warrant does a court have to intervene?

I’m not opposed to this line of thinking, because legislative intent defines the scope of agency authority. At the same time, there is something unsatisfying about the conclusion that agencies can themselves lower the probability of their decisions being scrutinized by litigants and ultimately courts. For that reason, as the Americans determined, the legislature is probably the best place to reckon with the difficult balance required between the delegation of power to administrative decision-makers and the ability of claimants to challenge agency action. A legislature could prescribe standards that allow claimants to have a say in the sorts of guidelines adopted by an agency. I do not expect such legislative guidance to come any time soon. But one could hope for the regulation of administrative law’s bowels.

The Panglossian Peril

The dangers of naïve optimism in thinking about constitutional constraint

In a provocative paper recently posted on SSRN (and based on the HLA Hart Memorial Lecture delivered last year at Oxford), Frederick Schauer challenges a fairly common tendency to argue that apparent conflicts between rights and important interests, or among rights, are illusory, and that, properly understood, these rights and interests can be reconciled so as to avoid the conflict. Professor Schauer calls this tendency “Panglossianism”, after the obstinately and obliviously optimistic character of Voltaire’s Candide, and argues that it makes for muddled thinking that will end up compromising the rights that Panglossians purport to value. Professor Schauer makes important points, although I am not persuaded by his takeaway.

* * *

Professor Schauer wants us to recognize that we cannot have it all ― socially desirable policies fully implemented and rights fully protected at the same time. He laments

the common but nonetheless troubling tendency of many people to perceive (or distort) the empirical aspects of various interests in a manner that eliminates the conflict between them and other interests, or between those interests and the rights with which they may conflict. And although people sometimes thus perceive interests in ways that make rights appear cost-free, they also indulge in the equally common tendency to define rights in a way that similarly eliminates the constraints that rights sometimes impose on legitimate interests. (1-2)

To relate just one of the examples he uses, when it comes to prohibitions on hate speech, those who oppose them will often insist that hate speech is not especially harmful, or is not harmful in ways that anyone should really care about, so that upholding the right to freedom of expression has no real cost. Conversely, many of those who support the criminalization of hate speech invoke the mantra of “hate speech is not free speech”, similarly insisting that their preferred resolution of this issue is costless. “Panglossianism” can accordingly involve either a reading of the data (or speculation) about the effects of policies that minimizes their impact on rights, or a redefinition of rights or other constitutional rules that narrows them so as to ensure that a favoured policy is not precluded.

Professor Schauer argues that Panglossianism is a mechanism people deploy to deal with the threat of cognitive dissonance that they might experience if they acknowledge that their preferred policies and constitutional commitments are in tension, and even in conflict. It is easier to believe, and to say, that such conflicts are not real, or can easily avoided, than to deal with them, which would mean taking sides, recognizing that one is wrong about rights or that one’s preferred policy cannot be implemented.

Yet Panglossiansim is a problem, for two reasons. First, intellectual honesty requires us “to avoid attempting to see the empirical world through the rose-colored glasses of one’s own normative desires”. (18) And second, rights are safer if they are not justified on the basis of empirical claims that are either weak to begin with, or at best “temporally or culturally contingent [so that] the right may turn out to be weakened or inapplicable under different empirical conditions”. (19) Rights are stronger if they are grounded in pure moral principle than if their continued existence depends on whether it is, or is not, relatively harmless. Indeed, if only harmless rights deserve protection, then not much is going to be protected at all. Professor Schauer warns that policy-makers (whether in the legislative or in the executive branch) can Panglossians too; they will tempted to insist that there is no conflict between their preferred policy and constitutional restrictions on their action. But

[u]nlike the rights-concerned Panglossian commentator or advocate who interprets – or distorts – the empirical data so as to eliminate a conflict between policies and rights, here the official is more likely to attempt to eliminate the conflict between policy preferences and constitutional constraints by understanding the constraints in a way that makes them inapplicable to the issue at hand. (22)

Panglossianism, Professor Schauer notes, can undermine not only rights protections, but all manner of intended constitutional rules. Resorting to it may be psychologically comforting, but it will weaken the very idea of constitutional constraints on governments’ pursuit of their preferred policies.

* * *

I think that Professor Schauer describes a real problem. It is indeed tempting to say that the enforcement of one’s favoured right does not compromise the attainment of valuable policy goals or the respect of other rights; it is similarly tempting to insist the implementation of one’s preferred policy conflicts with no real rights, properly understood. Debates about free speech are one area where this dynamic is especially visible, as Professor Schauer notes, but there are any number of others. It is arguable (which is not necessarily to say true) that the controversy over the federal government’s demand that religious groups “attest” to the compatibility between their “core mandate” and (some) Charter rights, about which I’ve written here, also involves Panglossian arguments on both sides.

And Professor Schauer is quite right to point out that Panglossianism can affect thinking about structural constitutional rules, and not just rights. Indeed, I would suggest that in Canadian constitutional law, Panglossianism is an especially strong danger in federalism jurisprudence. In Charter cases, section 1, which authorizes the imposition of “limits” to rights, channels the analysis into a more explicit consideration of the conflict between rights (which tend to be defined in broad and abstract terms) and policy reasons for restricting them. By contrast, the movement towards the erosion of the exclusivity of federal and provincial heads of power under the banner of “co-operative federalism” proceeds from the Supreme Court’s unwillingness to acknowledge the existence of conflict between what it sees as desirable policy and the federal division of powers. Federalism analysis simply makes no room for the acknowledgement of this conflict. This is not to say that we should change the way we approach it ― but we should beware the Panglossian dangers inherent in what we do.

Yet while I think that there is a great deal of truth to Professor Schauer’s diagnosis of the pathologies of Panglossianism, his prescriptions against it may not be especially salutary. Professor Schauer does not tell us much about how to assess what he sees as potentially-Panglossian claims about the effects of policies or the scope of rights. He warns against thinking, for instance, that not punishing hate speech is costless because such speech does not really cause any social evils. Fair enough ― those of us opposed to bans on hate speech on normative grounds will be tempted to downplay its effects. But what if it really doesn’t have any? Conversely, if hate speech really is socially harmful, that happens to align with the preferences of those who want to ban it. Both sides in this particular debate cannot, I think, be wrong at the same time. The mere fact that an empirical claim aligns with someone’s prior normative preferences cannot mean that the claim is wrong. The same applies to claims about the scope of rights (to the extent that these can be said to be correct or incorrect at all).

So while we should be wary of the dangers described by Professor Schauer, he has not convinced me to give up on empirical or otherwise contextualized thinking about rights in favour of a priori philosophizing. This is all the more so in the numerous cases that concern what might be described as marginal (possible) infringements of rights. Perhaps the hate speech question, which is about whether people can be prevented from saying certain things at all can be sufficiently resolved by an a priori insistence that such bans are never permissible. Note, though, that the argument wouldn’t work the other way: a case for banning hate speech can only be made if one is allowed to rely on empirical considerations (unless of course one takes the position that there is no right to free speech at all and anything can be banned). But what about, say, restrictions on financing political parties? Most people accept that at least some restrictions are acceptable (most people in North America, anyway; New Zealand has no limit on how much one can give, and seems to be doing just fine!). Many ― most, I hope ― would also agree that some restrictions are too extreme and cannot be justified. The issue is where to draw the line, and where to err in doubt. I don’t think that we can give remotely interesting answers to these questions without knowing something about the current practices of political fundraising and the likely effects of raising or lowering the existing restrictions. Again, Professor Schauer’s warnings about Panglossianism are relevant, but his suggestion that we resolve our questions by reference to first principles alone is not helpful.

Now, Professor Schauer is right, of course, that any empirically contingent answers might be inapplicable under different circumstances. He might be overstating the extent to which this is a problem: I’m not sure, for instance, that cultural contingency of rights protections is objectionable; it’s not obvious that rights must be the same everywhere and at all times. However, to the extent that, within a legal order, rights are implemented through judicially articulated constitutional doctrine, this doctrine risks being destabilized if the empirical or normative premises on which it is based are challenged by the evolution of society and of what we know about it. How to deal with this risk of instability (and its converse, the risk of a static doctrine divorced from reality) is a difficult question, to which I have no very good answers. But I doubt that we can avoid trying to get at some answers, at least, if only mediocre (and contingent!) ones.

Thinking about constitutional rules and their relationship with policy is a difficult business. Professor Schauer is right to remind us that we are too often tempted to oversimplify it by pretending that contradictions between our normative commitments and policy preferences are less significant than they really are. Unfortunately, he doesn’t offer us much by way of useful advice for identifying the exact situations where our thinking is so sidetracked, and his suggestion that we think more about abstract principle than about the real-world effect of policy does not strike me as especially helpful. Nevertheless, Professor Schauer’s warning is an important one, and we should heed it even if we conclude that we must continue exposing ourselves to the dangers he highlights.

Not Withstanding Scrutiny

The Saskatchewan government hasn’t justified its resort to the notwithstanding clause in the Catholic school funding case

Yesterday, I summarized and briefly commented on the decision of the Saskatchewan Court of Queen’s Bench in in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which held that funding Catholic schools for educating non-Catholic students was an unjustifiable infringement of religious liberty and equality guarantees of the Canadian Charter of Rights and Freedoms. In my view this decision is correct. However, plenty of people disagree. Importantly, so does the government of Saskatchewan, which has announced that it will have the provincial legislation resort to the Charter‘s “notwithstanding clause” to nullify the Court’s decision, ostensibly in the name of school choice. Some thoughtful people, like Emmett Macfarlane and Dennis Baker, are supportive of the idea. In my view, however, it is misguided and hypocritical, not to mention illustrative of why the notwithstanding clause should never be used.

The best justification for occasionally resorting to section 33 of the Charter, which allows a legislature to suspend for a renewable period of up to five years the operation of constitutionally protected right is that the legislature disagrees with the courts’ interpretation of that right. After all, if the truth about rights, to borrow a phrase from Jeremy Waldron, exists at all, it’s not obvious that courts have privileged access to it. Questions about rights, about what counts as justifiable limitations of rights, are difficult, and reasonable people can disagree about them. In the face of such disagreement, isn’t it acceptable for the people’s elected representatives to decide that their views ought to prevail over those of unelected judges?

Trouble is, this solemn scene ― representatives of the people deliberating about rights and coming to conclusions that are reasoned and reasonable, if different from the judges’ ― has not taken place in Saskatchewan. The government doesn’t say that it disagrees with Justice Layh’s views about the scope of religious liberty or equality. It does not argue that the constitutionally protected freedom of religion does not encompass a duty of religious neutrality on the part of the state. It does not say that granting funding for students outside of a school’s denomination to Catholic schools and to no others is consistent with neutrality or not discriminatory. It is content to state the objective of “school choice” ― which, by the way, I think is a laudable objective, but which the government’s lawyers didn’t even dare put to the Court ― as if the end justifies the means, and it is permissible to disregard Charter rights as soon as one has a worthwhile reason for doing so. This is not what the defenders of the notwithstanding clause, or indeed the critics of any judicial enforcement of individual rights, say they have in mind. Why, then, do they defend the Saskatchewan government?

The Charter, or any sort of system that protects individual rights against infringement by the state, is based on the idea that the end does not always justify the means. At most, there is a proportionality test, such as the one embodied in section 1 of the Charter. A pressing social objective can justify some limitations of rights, but no more than is necessary, and in particular, not if less restrictive means are available to the government. Of course, whether the means at issue in a given case are the least restrictive available is a difficult question, and legislatures and courts might disagree about that. But there is no sign that Saskatchewan’s government has given any thought to alternative ways of achieving its professed objective of school choice. Why, then, do those boosters of the “notwithstanding clause” that justify its use by the existence of reasonable disagreement defend this government?

In reality, the government’s position is doubly hypocritical. It is hypocritical, first, because although it is posing as the defender of school choice, it is the government that is ultimately responsible for limiting the choices of the parents at the centre of this litigation. The government funds public schools. Its funding was not sufficient to keep a rural school open. The school board decided to close it, and have students be bussed to a different one. Instead of accepting this, some parents took advantage of constitutional rules allowing them to set up a “separate” Catholic school―in a village where there had never been one―, and non-Catholic parents, who had never had any particular interest in Catholicism, decided to also send their children there. If the choices of these parents mattered as much as the government now says they do, the local public school would have stayed open, and this case would not have arisen.

The government is hypocritical, second, because it has perfectly constitutional options to provide even more school choice than it now does ― in which it appears to take no interest. The government could provide all groups, including all religious groups, with funds to educate students from outside their communities. That would be real, meaningful school choice ― not the rather limited choice of a public or a Catholic school, which is only a choice, as Justice Layh points out, for those who do not mind their children receiving a Catholic education. Sure that might be costly system ― but if school choice is important enough to override constitutional rights, surely it’s worth a little tax raise?

Instead of admitting that its position is driven by fiscal, and presumably ultimately electoral, considerations rather than an authentic concern with school choice, the government compounds its hypocrisy with misleading threats. It claims that “[t]he ruling [in Good Spirit School Division] could also risk provincial funding of 26 other faith-based schools including Luther College, Regina Christian School, Saskatoon Christian School and Huda School.” The press release conveniently doesn’t mention the fact that this funding, which was not actually at issue in the Good Spirit School Division case, is less that the funding Catholic schools receive, and that at least the Huda School was on the side of the plaintiffs in the proceedings. Indeed, I wonder how the people involved the Huda School feel about being used in this way to make the government’s case considering the testimony of the school’s president at trial. Here’s how Justice Layh describes it:

he asked why the Huda School cannot receive funding to educate non-Muslim students, just like Catholic schools receive funding to educate non-Catholic students. The Huda School does not discriminate against hiring non-Muslim teachers (unlike Catholic schools). The majority of its teaching staff is non-Muslim. Dr. Aboguddah testified that the Huda School would welcome non-Muslim students to its growing school of 430 students (in 2016) which would provide an opportunity to build bridges with the broader Canadian community to reduce the stereotyping and negative image affecting the Muslim community in light of recent world events. [397]

A Rabbi similarly testified “that certain advantages would accrue to the small Jewish school in Regina if it received complete government funding for non-Jewish students.” [440] Again, if the government were committed to meaningful, non-discriminatory school choice, it would fund schools equally, regardless of who is behind them. The constitution would not stand in its way. It is its choice not to do so ― and it ought to accept the constitutional consequences of this choice.

Like a court looking to uphold a dubious administrative decision on a reasonableness standard, Profs. Macfarlane and Baker, and those who agree with them, offer their own reasons for why Justice Layh’s decision was wrong. I might return to that in a future post. Here, my point is that the government of Saskatchewan does not give any such reasons. Its justification for overriding this decision cannot withstand scrutiny. And it’s the government, not the thoughtful (if in my view mistaken) scholars, that gets to use the “notwithstanding clause”. If government were run by profs. Macfarlane and Baker, I would have fewer qualms about its ability to override judicial determinations of constitutional rights. But it is not.

As this case demonstrates, real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves. They will press ahead with their political objectives, sloganeering and lying along the way. I have said this before ― in the face of judicial decisions with which I virulently disagreed ― and I say so again: if we are serious about constitutionally entrenched rights, we are better off with a categorical presumption against allowing legislatures to resort to the “notwithstanding clause”.

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.