Unintended Consequences?

When I commented on the oral arguments in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case, I argued that although there was a good deal of support among the various parties and interveners for the proposition that it was section 96 of the Constitution Act, 1867, that rendered (excessive) court fees unconstitutional, this argument was problematic. Among other things, I worried that “[t]oo robust a view of s. 96 or of the principle of separation of powers would call … legislative efforts [to provide mechanisms of alternative dispute resolution, for instance, or even to encourage litigants to settle] into question.”

In the event, the Supreme Court decided the case on the basis of s. 96, holding that excessive fees were an interference with the “inherent jurisdiction” of superior courts. In criticizing that decision, I argued that “the fact that courts may have fewer litigants able or willing to go before them cannot, in itself, be an interference with their jurisdiction [because i]f it were, a great many rules encouraging litigants to settle their dispute or to use alternative dispute-resolution mechanisms would be unconstitutional too.” In a post published on À bon droit last week, Olga Redko expands on these concerns, arguing that

the majority’s opinion raises the concerning possibility that the Court’s new reading of section 96 in conjunction with the rule of law principle may be used to undermine existing provincial authority over access to alternative dispute resolution, and private international law more generally.

Ms. Redko worries that the principle set out in Trial Lawyers could be invoked by a party seeking to get out of an agreement to arbitrate or a choice of forum clause giving a foreign court jurisdiction over a dispute that might be subject to the jurisdiction of the courts of a Canadian province. As she points out,

[c]ontractual clauses sending parties to binding arbitration, or designating other provincial or state courts to resolve the dispute, clearly have the effect of denying a party the right to bring a case before the Quebec Superior Court. They arguably lead to the same result with which the Court is so concerned in Trial Lawyers Association, namely hampering the creation, maintenance, and interpretation of positive laws within the province [by its superior courts].

What is more, in Ms. Redko’s view, because of the problem of state action, the principle would not apply in the same way in the provinces where agreements to arbitrate and choice of forum clauses are enforceable pursuant to legislation and those where they are so at common law. Other rules whose effect is to limit access to courts may be called into question as well. Ms. Redko concludes that

[w]e must hope that, in light of the problems presented by such an expansive view of superior courts’ inherent jurisdiction, in future cases the Supreme Court will be very careful in broadening its interpretation of what constitutes an infringement of section 96.

I obviously agree with this conclusion. However, I am perhaps more confident than Ms. Redko that the potential problems which she and I have flagged will be avoided. The idea of state action, I believe, will actually play a constructive role in distinguishing those barriers to access to superior courts that contravene s. 96 and those that do not.

If I understand her correctly, Ms. Redko assumes that in future s. 96 cases, courts apply the rule from the Charter jurisprudence, which distinguishes common law rules from from legislated ones, the Charter only (directly) applying to the latter, and not the former. For my part, I see no reason for this belief. The rule that the Charter does not apply to private common law rules is grounded in the text of s. 32 of the Charter itself, and has nothing to do with s. 96. Although that case did not involve s. 96, in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, the Supreme Court showed that it is aware of the possibility that judicially-created rules will undermine access to justice. I trust that it would treat them in the same way as legislated rules in the context of future s. 96 litigation.

The way the idea of state action will impact such litigation is, I expect ― though perhaps I just hope ― will be to justify a distinction between barriers to access to superior courts created by the government itself ― whether by its legislative, its executive, or its judicial branch ― and those agreed to by the parties themselves. In light of the Supreme Court’s recent jurisprudence which, as Ms. Redko notes, “underscored the importance of respecting parties’ autonomy to select a mutually agreeable forum,”  I cannot believe that courts will treat choice of forum or arbitration clauses as equivalent to hearing fees. Courts will, I trust, recognize that rules of law that give effect to the parties’ intentions are different from those that hinder them.

I also think Ms. Redko somewhat misunderstands the concern of the Trial Lawyers majority with “the creation and maintenance of positive laws” (par. 40) by provincial superior courts. According to the majority,

In the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law. If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect.

In the context of this paragraph, and of the opinion more generally, I think that “cannot” must be understood as “are prevented by the state from.” The worry is not about the litigants who choose to take their cases elsewhere, but about those who are left with no choice.

But there is also an intermediate class of situations, where parties are given a choice to go to a superior court, but are “nudged” or pressured not to exercise it. I am thinking, in particular of rules designed to encourage parties to settle their disputes, for example by making a party that refuses a reasonable offer to settle responsible for costs even if it wins the case on the merits. This issue was raised at oral argument in Trial Lawyers, and it is true that an expansive reading of that decision might be used to argue for the invalidity of such rules, since both their purpose and, surely, their effect, is to make some litigants forgo trials. But somehow I rather doubt that the Supreme Court would accept such an application of Trial Lawyers.

That said, these are just my guesses. I could be wrong. And even if I am right, Ms. Redko’s important post certainly shows that the constitutional theory adopted by the majority in Trial Lawyers is poorly thought through. It is susceptible of interpretations that are both undesirable from a policy perspective and inconsistent with the Supreme Court’s own recent jurisprudence. The Court’s poor choice of theory may yet turn out to be inconsequential, but it is unfortunate all the same.

Neither Here Nor There

I have summarized the Supreme Court’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case, here. Over a furious dissent by Justice Rothstein, the Court held that while provinces can impose some hearing fees, the fees cannot constitutionally result in “undue hardship” on litigants, preventing them from asserting their legal claims. The Court found that the B.C. fees do not pass this test, and declared them unconstitutional. As I wrote in the conclusion of my earlier post, the majority’s reasons leave some important questions unanswered. They also rest on shaky foundations, which Justice Rothstein’s dissent exposes. Yet Justice Rothstein’s own arguments are even less persuasive than the majority’s.

Perhaps most significantly in practical terms, the majority’s reasons do a poor job of answering the question of what fee or fee and exemption structure is constitutionally acceptable. The threshold the majority sets out for the acceptability of hearing fees ― that they must not cause “undue hardship” to litigants or make them “sacrifice reasonable expenses” ― strikes me as quite vague.

It also seems to have been formulated with only individual litigants in mind. But what about corporations? Not big corporations for which litigation is just another business expense, but small businesses ― say a convenience store engaged in a dispute with a supplier ― or non-profits? I suspect that to such litigants, the BC hearing fees can represent a significant expense, and perhaps a prohibitive one in some cases. But how will the “undue hardship” and “reasonable expenses” tests apply to them? Yet the majority’s rationale for finding some fees unconstitutional, which is that they interfere with the courts’ core jurisdiction and the Rule of Law, ought to apply to corporate litigants as well as to individual ones.

Most importantly, Justice Rothstein is right to point out that the majority’s pronouncements on the role that exemptions from fees can play in a constitutional hearing fees scheme are contradictory. As he explains, the majority says that “as a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees” (par. 48), while also saying that making litigants “come before the court, explain why they are indigent and beg the court to publicly acknowledge this status and excuse the payment of fees” (par. 60) can be demeaning and burdensome. Whether the exemption is framed in terms of “impoverishment” or “undue hardship” changes nothing to this fact; nor does it alleviate the majority’s “concern the exemption application itself may contribute to hardship” (par. 60). It is perhaps worth recalling that, as I noted at the time, at oral argument Justice Moldaver seemed convinced that an exemption regime was “unworkable.” The majority reasons (which Justice Moldaver signed on to!) do not really address this concern.

And then, there’s the question of whether a province could impose fees for hearings in provincial court (to which s. 96 of the Constitution Act, 1867, does not apply). Or, for that matter, in administrative tribunals. Now even British Columbia seems not to impose hearing fees in provincial courts, so this particular question might be purely academic but, at least in theory, anchoring the protection of access to adjudicative fora in s. 96, as the majority does, seems to suggest that access to other adjudicators ― which, no less than superior courts, even if under their supervision, engage in the determination of private and public law rights of individuals ― is not protected.

Beyond these practical worries, which may end up generating yet more costly and time-consuming litigation if British Columbia or some other province imposes fees coupled with an “undue hardship” exemption, the majority’s reasons are theoretically weak. Section 96 is a very dubious ground on which to rest a conclusion that hearing fees are unconstitutional. Justice Rothstein is quite right that the fees do not “limit the type of powers [s. 96 courts] may exercise.” They do not, in other words, interfere with these courts’ jurisdiction as it had been understood in the s. 96 jurisprudence, which has always been concerned with the removal of types of cases (e.g. judicial review of administrative tribunals) from the superior courts’ purview. The fact that courts may have fewer litigants able or willing to go before them cannot, in itself, be an interference with their jurisdiction. (If it were, a great many rules encouraging litigants to settle their dispute or to use alternative dispute-resolution mechanisms would be unconstitutional too.) As I have argued before, “the real issue [with the hearing fees] is not that the courts are being interfered with, but that individual litigants are.”

In the post just quoted, I argued that the Court should resolve the case on that ground, because hearing fees have the effect of preventing litigants from asserting their legal rights, which legislatures cannot abrogate, if at all, without clearly stating their intent to do so ― something the hearing fees do not do. So I am happy that the majority discusses the rule of law, even though it does not make that principle the main ground for its decision, and doesn’t go as far as the I would have liked. The majority is right that there cannot be a Rule of Law if people cannot assert their rights in court, and that “[i]f people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law” (par. 40). To my mind, that ― rather than s. 96 of the Constitution Act, 1867 ― is the key to resolving “the fundamental issue of principle” regarding the constitutionality of hearing fees, all the more since there is already a line of cases, culminating in Air Canada v. B.C. (A.G.), [1986] 2 S.C.R. 539, standing for the proposition that legislatures or governments cannot indirectly deny citizens’ constitutional rights by preventing them from asserting them in court. Unfortunately, the majority does not mention this jurisprudence (which was also ignored by the parties and the interveners). Instead, it tries to link the Rule of Law to s. 96, but the connection seems to me awkward and unconvincing.

It is, perhaps, an attempt to rebut Justice Rothstein’s criticisms, though the majority opinion never addresses his dissent directly. But while I share Justice Rothstein’s skepticism at the majority’s reading of s. 96, I think that his brutal attack on its reliance on the Rule of Law misses the mark. Justice Rothstein argues that an unwritten principle, especially one so “vague and fundamentally disputed” (par. 100) as the Rule of Law, cannot justify striking down laws on the basis of their content. But it’s not the substance of a law that is at issue with the hearing fees ― it’s the fact that litigants will be unable to assert or defend their rights under any law, whatever its content. In Jeremy Waldron’s terminology, the conception of the Rule of Law that is at issue here is neither a substantive nor a formal one (both of which the Supreme Court had rejected in the past), but a procedural one. Justice Rothstein, in my view, has no answer to the majority’s point that allowing hearing fees to prevent people from defending their legal rights places the government above the law, which the Court had already said would be a Rule of Law problem.

More generally, Justice Rothstein’s approach to constitutional interpretation is unconvincing. His position is an absolutist one ― since hearing fees are not prohibited by the constitutional text, they are permissible, whatever their consequences. Yet even the B.C. government did not take that view and accepted, at oral argument, that in the absence of a suitable exemption, fees could create a constitutional problem. Justice Rothstein’s paeans to democracy mask the fact that the fees are imposed by the rules of court, not by legislation actually enacted by elected representatives of the people. They also ignore the problem of near-total ignorance of access to justice issues by the electorate, which I describe here.

The majority, at least, ends up in the right place, more or less, although its reasons leave a lot to be desired from a theoretical standpoint and fail to answer many important practical questions. Justice Rothstein makes some important points in criticizing them, but his critique ultimately fails.

For Sale, at the Right Price

This morning, the Supreme Court of Canada has released its judgment in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case. A five-judge majority led by the Chief Justice holds that although a province can, in principle, impose some form of fees for access to courts, the fees British Columbia levied on litigants who set their cases down for trial in the province’s courts, escalating to 800$ per day starting on the 10th day of a trial, are an unconstitutional interference with the core jurisdiction of superior courts protected by s. 96 of the Constitution Act, 1867 as interpreted in light of the Rule of Law principle. Justice Cromwell, concurring in the result, would have held that the rules imposing the fees are, in their present form, not authorized by their enabling legislation, and thus invalid. Justice Rothstein, dissenting furiously , would have found that the fees are constitutional. In this post, I will summarize the majority decision and the dissent (setting aside Justice Cromwell’s concurrence). I will comment in a separate post.

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The Chief Justice holds that, as a general matter, provinces are allowed to impose hearing fees, as well as fees of other sorts, on people who go to court, pursuant to their power under subs. 92(14) of the Constitution Act, 1867, to “make Laws in relation to … [t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of the Provincial Courts.” While there is a right of access to courts, its exercise can be subject to conditions. Fees “may be used to defray some of the cost of administering the justice system, to encourage the efficient use of court resources, and to discourage frivolous or inappropriate use of the courts” (par. 21). The Chief Justice rejects the distinction that the appellants and some interveners defended at oral argument between hearing fees and fees of other kinds (such as filing fees) which courts in every province levy. The real issue, for her, is not “the type of the fee,” but whether the effect of its imposition is “to deny certain people access to the courts” (par. 22).

According to the Chief Justice, that consequence, a denial of access to courts, is prohibited by s. 96 of the Constitution Act, 1867 which acts as a limit on the province’s power over the administration of justice. On its face, s. 96 merely provides that the federal government is responsible or appointing the judges of superior courts. But it has long been held to imply the existence of an irreducible core of jurisdiction in these courts as well, which the provinces (or Parliament) cannot take away from them. The Chief Justice holds (par. 32) that hearing fees can have that effect:

The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function.  The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do. Indeed, it is their very book of business.

Thus hearing fees (or, presumably, any other court fees), cannot constitutionally “deny people the right to have their disputes resolved in the superior courts” (par. 36).

For the Chief Justice, “this suffices to resolve the fundamental issue of principle in this appeal” (par. 38). Nonetheless, she also explains at some length that her conclusion is also supported by the constitutional principle of the Rule of Law. The Rule of Law requires that people be able access courts, which in the Canadian constitutional framework means first and foremost superior courts. The Chief Justice argues (par. 40) that

[i]n the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law.  If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect.  And the balance between the state’s power to make and enforce laws and the courts’ responsibility to rule on citizen challenges to them may be skewed.

The Chief Justice concludes (par. 42) that

[t]he right of the province to impose hearing fees is limited by constitutional constraints.  In defining those constraints, the Court does not impermissibly venture into territory that is the exclusive turf of the legislature.  Rather, the Court is ensuring that the Constitution is respected.

Any fees for access to courts, the Chief Justice says, cannot “cause undue hardship to the litigant” (par. 45) ― that is, they cannot “require[] litigants … to sacrifice reasonable expenses in order to bring a claim” (par. 46). If hearing fees are imposed, they “must” (par. 48)

be coupled with an exemption that allows judges to waive the fees for people who cannot, by reason of their financial situation, bring non-frivolous or non-vexatious litigation to court.

The BC hearing fees regime, the Chief Justice holds, does not pass this test. It provides an exemption from fees for litigants who are “impoverished,” but the economic evidence is that the fees are so high that even those who would not ordinarily cannot be called poor cannot really afford them. It will not do to simply read the word “impoverished” broadly enough to cover middle-class litigants unable “to pay a fee that amounts to a month’s net salary” (par. 59). Requiring litigants to apply for the “impoverishment” exemption is also problematic because it may be “an affront to dignity and imposes a significant burden on the potential litigant of adducing proof of impoverishment” , a burden that will be worse in less “clear cases of impoverishment” (par. 60). Furthermore, the current escalating fees regime does not really promote efficient litigation. It penalizes those whose trials are long, not necessarily those whose trials are inefficient, and requires payment from a party who may not even have the control over the trial’s length, a problem which the possibility of an eventual compensation by way of an award of costs does not really address.

The Chief Justice considers the possibility of broadening the exemption for “impoverished” litigants by reading in the the terms “in need,” as the Court of Appeal had done, but rejects it. It is not clear, in her view, that the provincial legislature or government would have taken that approach, nor is it clear that even the broader exemption would be sufficient. The Chief Justice decides “to declare the hearing fee scheme as it stands unconstitutional and leave it to the legislature or the Lieutenant Governor in Council to enact new provisions, should they choose to do so” (par. 68).

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To Justice Rothstein, this is a usurpation (though he is too polite to use this word) of the “territory that is quintessentially that of the legislature” (par. 82). In his view, “there is no express constitutional right to access the civil courts without hearing fees” (par. 81), and absent a violation of such a clear constitutional right, courts ought to stay away from policy disagreements ― including, in this case, a policy disagreement about who should pay for the judicial system, and how. For Justice Rothstein, the conclusion that s. 92(14) of the Constitution Act, 1867, authorizes the imposition of hearing fees should be the end of the matter. He “take[s] exception to the majority striking down the British Columbia hearing fee scheme on a novel reading of s. 96 and the rule of law” (par. 85); “free (or at least affordable) access to courts is a laudable goal” (par. 86), but one for the political branches of government to realize as they see fit.

In Justice Rothstein’s view, the hearing fees do not trench on the superior courts’ core jurisdiction; limits on access are not the same thing as removals of jurisdiction. “The hearing fees,” he concludes, “are a financing mechanism and do not go to the very existence of the court as a judicial body or limit the types of powers it may exercise” (par. 90). Justice Rothstein faults the majority for not applying the existing test to determine whether the core jurisdiction of s. 96 courts is infringed, effectively accusing it of abandoning the law because it does not support its preferred conclusions.

Justice Rothstein is similarly unimpressed with the majority’s invocation of the underlying principle of the Rule of Law. Underlying principles might serve to fill “gaps” in the constitutional text, but there is no gap here. The constitutional text, which includes specific rights of access to courts in Charter and criminal cases, but not in other situations, must remain supreme. “In using an unwritten principle to support expanding the ambit of s. 96 to such an extent,” Justice Rothstein says, “the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text” (par. 93). Moreover, the right of access derived from s. 96 is “absolute” and not subject to the limitations and derogations which apply even to “fundamental” rights under the Charter. Justice Rothstein also points out that in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 47, the Supreme Court had suggested that the Rule of Law cannot serve to strike down legislation on the basis of “its content.” To do so is to undermine both the power of the democratically elected legislatures and the certainty of the written constitution provisions.

Besides, Justice Rothstein argues, the hearing fees do not really have the unfortunate effects which the majority attributes to the. The exemption for “impoverished” litigants can apply “where the hearing fees themselves would be a source of impoverishment” (par. 107). Cost awards can offset some the impact of the hearing fees. And courts themselves have a responsibility to keep trials short, thus reducing the amount of hearing fees due. Long (and thus costly) trials are exceptional, and should be even more so, something the fees can help achieve. Finally, Justice Rothstein points to the inconsistency of the majority’s saying both that judges must have discretion to waive any hearing fees and that the process of applying for such an exemption may be a burden and an affront to the dignity of the litigants.

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Justice McEwen at first instance, argued that “some things,” including access to civil courts, “are not for sale.” The Court of Appeal in effect held that selling access to courts is fine so long as it is given away for free to those “in need.” For its part, the majority of the Supreme Court seems to have some misgivings about the sale of access, but concludes that it is tolerable provided that the price is not too high. But its decision leaves some important questions unanswered, as I will argue in my next post. It also rests on shaky foundations, which Justice Rothstein’s dissent exposes. Yet Justice Rothstein’s own arguments are even less persuasive than the majority’s. This is, on the whole, a very unsatisfying case.

Constitutional Amendment and the Law

I have been a bit harsh on the Supreme Court in my first post on its opinion in the Reference re Senate Reform, 2014 SCC 32, saying that it had reduced the constitutional text to the status of a façade, which hid as much as it revealed of the real constitutional architecture, which only the Court itself could see. But one must recognize that the Court’s position was very difficult.  The amending formulae codified in Part V of the Constitution Act, 1982, are a nightmare, at once too precise and too vague to guide their interpretation. Although in our legal system text, especially constitutional text, is supposed to be the legal form par excellence, superior to any unwritten norm, Part V shows that this is not always so.

It is often said that, before Part V was added to the constitution in 1982, there was no general amending formula in the Canadian constitution. That is only true if “constitution” is understood as “constitutional text.” In reality, there was an amending formula ― the Canadian constitution could be amended by the Imperial (i.e. British) Parliament, which in accordance with a “constitutional position” (i.e. convention) recognized by the Preamble of the Statute of Westminster, 1931, would only act on address of the Canadian Parliament, which, in accordance with a further convention of which the Supreme Court recognized the existence in the Patriation Reference, could only make such an address with “substantial provincial consent.”

This last convention, requiring substantial provincial consent to constitutional changes, was obviously somewhat vague. And indeed it often said that vagueness is an inherent limitation of constitutional conventions, and perhaps one of the reasons which prevent conventions from attaining legal status. More generally, in his great work on The Concept of Law, H.L.A. Hart argued that the passage from somewhat uncertain traditional rules to formal ones was part of a movement from a pre-legal to a legal system. The replacement of the convention requiring “substantial provincial consent” with specific, written amending formulae forming part of the constitutional text ought to have clarified the constitutional rules, and made them more law-like.

Instead, what we got is a system which is in many ways no clearer than the old conventional rule. Indeed, Part V illustrates Lon Fuller’s insight that an ostensibly legal rule or system of rules can fail certain formal requirements (of what he called the “inner morality of law” and what we usually refer to as the Rule of Law) to the point where they fail to guide behaviour and, thus, to be law at all.

The system of a general rule (s. 38 of the Constitution Act, 1982), examples of the general rule (s. 42), and exceptions to the general rule (ss. 41, 43, 44, and 45, some of which (ss. 44 and 45) themselves sound like plausible general rules) does not make for consistency, which is one of the Rule of Law requirements outlined by Fuller. (I note, however, that this system is somehow very Canadian, in that it parallels that which we have adopted for dividing powers between Parliament and the provinces: there, the “peace, order and good government” clause of s. 91 of the Constitution Act, 1867 is the general rule, followed by examples of federal powers in s. 91, and exceptions in s. 92, at least one of which, subs. 92(13) was itself very broad. Not coincidentally, this complex scheme arguably contributed to the distribution of powers being interpreted in a way that is probably far from what its authors had intended.) The mention of the Supreme Court in the amending formula ― combined with the conspicuous absence of the Supreme Court Act from the list of enactments composing the “constitution of Canada” is another glaring example of the inconsistency of Part V.

What is more, its rules are not exemplars of clarity (does, for instance, the “selection of Senators” refer only to their formal selection by the Governor General, as the federal government argued, or to the whole process leading to it?) Some of these rules also seem to produce results so absurd as to border on the impossible (for instance, as one of the judges suggested at the hearing of the Senate Reference, the amending formula seems to indicate that Canada could be turned into a dictatorship more easily than into a democratic republic).

Add this all up, and we have a set of amending formulae that, as Fuller predicted, fail to guide behaviour ― not only that of the politicians to whom they are addressed in the first instance, but also of the courts to which the politicians turn for help understanding them. We have, in other words, a set of rules which, although purportedly legal, indeed purportedly part of the “higher law,” in some circumstances fail to be law at all. (One should not exaggerate the scope of the problem. In many cases ― say, transforming Canada into a republic ― the import of Part V will be perfectly clear. But the Senate Reference as well as l’Affaire Nadon show the importance of cases where this is not so.)

Yet if one thing is unmistakable after the entrenchment of Part V, it is that the “procedure for amending the constitution of Canada” is a legal, and no longer a conventional matter. The courts are stuck with it, and cannot offload the problem of interpreting it to politicians. (In reality, the Supreme Court’s engagement with the conventions of constitutional amendment in the Patriation Reference and the subsequent Quebec Veto Reference illustrate the limits of its willingness, or ability, to do so even under the old, conventional regime.) And so the Supreme Court really had no choice but to try somehow to bring the less-than-fully-legal mess of Part V into the realm of legality. Inevitably, it had to do some violence to the text. It would not be fair to fault it for having done so. However, the difficulty of the Court’s position should not shield it from criticism of the way it went about its task, or absolve it from the responsibility for the problems which its endeavour will create. In particular, the concept of “constitutional architecture” which it used deserves critical attention. I hope to provide it shortly.

A Puff of Smoke

I argued last week that the Supreme Court should find British Columbia’s “hearing fees,” which litigants must pay to bring a case in front of a judge, unconstitutional as a violation of the principle of the Rule of Law. But what about the Supreme Court’s decision in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, asks Duncan J. MacAuliffe on Twitter. It was the basis for my saying that “the Supreme Court has understood [the Rule of Law] very narrowly.” But doesn’t it stand for a still more far-reaching proposition?

In this (rather delayed) post, I would like to explain why I think that Imperial Tobacco does not compel the decision the principle of the Rule of Law cannot invalidate B.C.’s hearing fees.

The issue in Imperial Tobacco was the constitutionality of a B.C. statute which allowed the provincial government to sue tobacco manufacturers to recover the money the province spent on healthcare for people suffering from tobacco-related illnesses. The statute was clearly retroactive ― it was not a tort, prior its enactment, to cause the government economic damage by selling tobacco, and this retroactivity was one of the grounds on which it was challenged, the argument being that it violated the principle of the Rule of Law.

The Supreme Court rejected this claim, holding that “none of the principles that the rule of law embraces speak directly to the terms of legislation” (par. 59). Indeed, it said,

the government action constrained by the rule of law as understood [by the Court’s jurisprudence] … is, by definition, usually that of the executive and judicial branches.  Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e., the procedures by which legislation is to be enacted, amended and repealed) (par. 60).

The Court rejected more substantive readings of the Rule of Law, encompassing requirements of prospectivity, generality, and fair civil trials. The requirements, it pointed out, “are simply broader versions of rights contained in the [Canadian Charter of Rights and Freedoms]” (par. 65), and it would be illegitimate for courts to rely on the unwritten principle of the Rule of Law as a vehicle for importing them into the constitution. Furthermore,

several constitutional principles other than the rule of law that have been recognized by this Court — most notably democracy and constitutionalism — very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the  requirements, such as judicial independence, that flow by necessary implication from those terms).  Put differently, the appellants’ arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box (par. 66).

This is strong (and, as I have suggested here, unfortunate) stuff. Still, I think that Imperial Tobacco can fairly easily be distinguished from  the hearing fees’ case, and should be so distinguished, because two important elements that led the Supreme Court to decide Imperial Tobacco the way it did are not present in the case of the hearing fees.

One is the “expanded-version-of-Charter-rights” claim. In my view, there isn’t really anything in the Charter that protects a limited version of the claim at issue. The Rule of Law problem with hearing fees, I have argued, is that they are an indirect and stealthy device for preventing people from asserting their constitutional, statutory, and common law rights which ostensibly still exist as a matter of law. The Charter does not speak to this issue, and thus the situation is not the same as with retroactivity and trial unfairness, which it explicitly prohibits in criminal cases, but says nothing about ― and thus tolerates ― in civil matters.

The other distinction between Imperial Tobacco and the hearings fees’ case is that in the latter, the Supreme Court’s precedents, although they are probably not, by themselves, sufficient to compel the conclusion that the fees are unconstitutional, at least point in the direction of this outcome. These precedents, notably Amax Potash Ltd. v. The Government of Saskatchewan, [1977] 2 S.C.R. 576 and Air Canada v. B.C. (A.G.), [1986] 2 S.C.R. 539, hold that a province cannot deny a person, whether through legislation or by an exercise of executive discretion, an opportunity to challenge the constitutionality of legislation by which it deprived him of some legal rights. In other words, they mean that no one can be stripped of his or her constitutional rights by being prevented from asserting them in court. 

Now there is a step to be made from these cases to that of the hearing fees, because what is at issue there is not just constitutional rights, but all legal rights, including some which a province can modify by legislating. But the case of Wells v. Newfoundland, [1999] 3 S.C.R. 199, stands for the proposition that even non-constitutional rights have to be extinguished by clear statutory language, not by implication or stealth.

Imperial Tobacco does not discuss these cases. It certainly stands for the proposition that a province (or Parliament) can retroactively modify legal rights. But the statute at issue there did so explicitly, rather than by barring the holders of these rights access to the courts while purporting not to touch the rights in question, so the Supreme Court did not there decide whether that was permissible. And that is the issue it has to face in the hearing fees’ case.

In approaching that issue, the Court should certainly take its own advice in Imperial Tobacco and reflect on the importance of the principles of constitutionalism and democracy. Constitutionalism, for instance, means that the province cannot prevent litigants from asserting constitutional claims (the very issue decided in Amax Potash and Air Canada), which the hearing fees will do in some cases, or for that matter from asserting their claims under federal law, which they will do in others. And democracy should mean that a regulation enacted by the provincial executive should not deny litigants rights conferred or not interfered with by democratically enacted provincial statutes, which the hearing fees will do in cases arising under provincial law.

As for the Court’s broader comments about the Rule of Law not constraining legislatures and denigrating “amorphous constitutional principles,” I think they are flatly contradicted by its own jurisprudence. Legislatures, the Court itself has recognized, are bound to maintain a legal framework. Principles can have strong legal effects, none more so than that of judicial independence (which, incidentally, happens to be a much beefed-up version of s. 99(1) of the Constitution Act, 1867). These unfortunate comments are really so much smoke ― toxic, but almost weightless, and easily blown away.

Which Way to Court?

I wrote yesterday about the oral argument which the Supreme Court heard on Monday in the case now known as Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), formerly Villardell v. Dunham. At issue is the constitutionality of the “hearing fees” which British Columbia requires a litigant setting a civil case down for trial to undertake to pay. The first three days of the trial are free, the following seven cost 500$ each, and any additional day, 800$. That’s a lot of money, and while the province offers an exemption to those too “impoverished” to pay up, and accepts that “impoverished” can and ought to be interpreted as “in need,” various organizations representing the bar are arguing that the fee is unconstitutional, for one of a variety of reasons. Some of the reasons offered, which I discuss in more detail in yesterday’s post, do not persuade me. Yet there is an argument for the fees’ unconstitutionality that I find convincing.

All parties, including the B.C. government, agree that it is wrong for people to be prevented from having their day in court by the imposition of fees that they cannot pay. Not just wrong, indeed, but actually unconstitutional. The governments that defend B.C.’s hearing fees regime point to the exemption for the needy as its essential redeeming feature. But what is it that would make it unconstitutional to deny people a hearing if they cannot pay for one? The Charter, as the lawyer representing B.C. pointed out yesterday, does not protect any civil procedure rights, and section 96 of the Constitution Act, 1867, as he also pointed out, has so far only been read to protect the jurisdiction of, not to apply to the procedure before, superior courts.

Despite even the federal government taking the position that it is indeed s. 96 that would be affected by excessive hearing fees or insufficient exemptions, I am skeptical of this view, and of the broader separation of powers theme that was clearly discernible in some of the fees’ opponents’ arguments. The real issue is not that the courts are being interfered with, but that individual litigants are. I do not think it is wrong for legislatures to provide mechanisms of alternative dispute resolution, for instance, or even to encourage litigants to settle ― so long, as some of the parties noted, as this encouragement works by asking the parties to take a sober view of the merits of their case, and not by making it impossible to pursue it regardless of the merits. Too robust a view of s. 96 or of the principle of separation of powers would call such legislative efforts into question.

I am also skeptical of the argument, advanced by Joseph Avray on behalf of the advocates’ society, that the hearing fees are wrong because it is somehow impermissible for the government to charge for what is “a public good” ― understood not in its strict economic meaning, but simply as something that benefits society as a whole. Mr. Avray’s own examples show that his distinction does not work. He mentioned hospitals and schools ― but surely healthcare and education benefit the patients and the students first and foremost, as well as the public. And taking Mr. Avray at his word about education, does seriously suggest that any tuition fees in universities are unconstitutional?

That said, the idea that litigants do not profit by going to court is, I believe, correct and important. As I wrote here,

[o]nly a successful plaintiff gets something out of litigation – and even that is presumably something he was entitled to. A successful defendant doesn’t get anything, except at most a (partial) reimbursement of his fees – nor, a fortiori, a losing plaintiff or defendant.

(The one narrow exception to this, I suppose, is the plaintiff who wins punitive damages.)

The importance of this point is not, however, that it can be fashioned into a self-standing constitutional principle, but that it underscores that a litigant, whether plaintiff or defendant, comes to court not to gain a benefit, but to vindicate a right already conferred on him or her by law.

This is why the relevant constitutional principle is that of the Rule of Law. Although the Supreme Court has understood it very narrowly, even this narrow understanding encompasses the idea that “the relationship between the state and the individual must be regulated by law” (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at par. 71). This requirement is jeopardized if the government can thwart persons attempting to vindicate their legal rights, not by modifying these rights by “due process of law” (i.e. at least by enacting legislation that has this effect explicitly or by necessary implication) but by making their enforcement practically impossible.

A line of cases culminating in Air Canada v. B.C. (A.G.), [1986] 2 S.C.R. 539, to which unfortunately no party referred on Monday, illustrates this principle. Air Canada wanted to challenge the constitutionality of a law enacted by the B.C. legislature but, under old rules for suing the Crown, required a fiat ― a permission ― from the Lieutenant-Governor to do so. The provincial government advised the Lieutenant-Governor not to grant the fiat. The Supreme Court held that neither a statute nor an exercise of executive discretion (whether authorized by statute or by the royal prerogative) can be used to deny a person the means of asserting his or her constitutional rights, and thus indirectly abrogating them. Air Canada and its predecessors were constitutional cases, resting (implicitly) upon the principle of constitutionalism, but in my view it is but a small step to extend this application of constitutionalism to its cousin the Rule of Law, to which it “bears considerable similarity,” as the Supreme Court recognized in the Secession Reference (par. 72).

As I wrote here,

Our legal rights arise under the constitution, statutes, or the common law. Superior courts have jurisdiction over both constitutional and common law rights, as well as many statutory rights … Provincial legislatures cannot modify constitutional or federal statutory rights. They can modify or even extinguish rights arising under provincial statutes or the common law but, generally speaking, must do so in clear terms. … Making it impossible for people to go to court to vindicate their rights arguably amounts to their de facto abolition – yet the province cannot abolish constitutional and federal statutory rights, and further, it is abolition by stealth, which is not permissible even for provincial statutory and common law rights.

This, it seems to me, is the problem with hearing fees. Their effect, at the very least, and arguably even their purpose, is to prevent people from vindicating their legal rights whenever this vindication requires more time in court than a litigant can afford, which is contrary to the Rule of Law requirement that our relationships the government (and, to some considerable extent, with each other!) be structured by law.

Importantly, this requirement, and thus the approach based on it, does not depend on the nature of the litigants, as both the exemption regime defended by B.C. and other governments and the attempt to ground a right of access to courts in s. 7 of the Charter do. These approaches mean that it is perfectly fine to deny a small business or an NGO the right to go to court ― because such entities can neither be “impoverished” in any normal sense of the word nor benefit from s. 7 rights. Yet it seems to me that it is no less wrong to prevent them from asserting what they believe to be valid legal claims than it is to do so with individuals. Legal rights are rights regardless of what sort of person or entity happens to hold them, and the Rule of Law principle appropriately recognizes that. 

Will the Supreme Court go that way? I wouldn’t bet on it. The Court has often been reluctant to rely on underlying constitutional principles, except that of judicial independence. Still, I think that this approach is at least as close, and probably closer, to the bounds of its precedents as any other that was proposed to it on Monday. The Rule of Law is, admittedly, a somewhat Protean and very contested concept, and Ontario’s lawyer had a point in arguing that to some considerable degree, it an aspirational principle the implementation of which must be left to legislatures. Still, if it is to mean anything, the Rule of Law must include the ability of citizens to claim what the law says is theirs. A government that abides by the Rule of Law can be allowed to deny them this right.

Who Pays for Justice?

Yesterday, the Supreme Court heard the oral arguments in the B.C. hearing fees case, now known as Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), a case I have much blogged about as it made its way through the B.C. courts (where it was known Villardell v. Dunham, both on trial and on appeal). You can watch the hearing here, or read the rough transcript I have made. I will give an overview of the oral argument in this post, and have some comments in a separate one.

Just by way of reminder, the hearing fees at issue are  imposed, in all civil cases litigated in the B.C. Supreme Court (which is a court of first instance), on the party setting the case down for trial, escalating with the trial’s length. Under the current rules, the first three days are free; days 4-10 cost 500$ per day; and subsequent days each cost 800$. The cost of any protracted trial can thus quickly become prohibitive, not only for lower-income litigants, but even for middle-class people. The rules allow a judge to exempt an “impoverished” litigant who applies for permission not to pay the fees, a term that the Court of Appeal read to extend to all litigants unable to “meet their everyday expenses if … required to pay the fees” (par. 41). 

Not good enough, say the Trial Lawyers and the BC branch of the Canadian Bar Association, as well as a number of interveners, who argue that the fees impede access to justice and prevent the less well-off litigants from having their disputes resolved by courts. The provincial government, however, defends its approach, arguing that its twin objectives of cost-recovery and rationing of court time not only are legitimate within its constitutional power to administer courts, but are in fact ways of ensuring access to justice by making sure that at least some court time is available to all litigants.

When I discussed Justice McEwen’s ruling (holding the fees unconstitutional) at first instance, I noted that three threads run through his reasons: a separation of powers argument, according to which the hearing fees interfered with the constitutionally protected prerogatives of the judiciary; an individual rights argument, according to which there is a constitutionally-protected right to go to court, with which the fees interfere; and a difficult-to-characterize argument according to which the hearing fees are contrary to a certain idea(l) of what public services ought to be like. The appellants and the interveners who support them made versions of all three of these arguments, in what seemed a rather uncertain search for constitutional support the claim the hearing fees are unconstitutional.

The separation of powers argument led them to invoke section 96 of the Constitution Act, 1867, which the Supreme Court has read as protecting a core of jurisdiction of which superior courts cannot be deprived. Indeed, even the respondent, as well as some of the other provinces, conceded that at some hypothetical level, hearing fees would be so high as to prevent superior courts from having any litigants before them, thus infringing this core jurisdiction, although they argued that the fee regime at issue was not problematic in this way.

The individual rights argument took two different forms. Mostly, the right of access to courts (which the parties tended to refer to as access to justice, although ― as the provinces pointed out ― access to justice involves many different things) was said to flow from the constitutional principle of the Rule of Law, which the Supreme Court has long recognized, albeit giving it a very narrow meaning. The appellants especially relied on the Supreme Court’s decision in B.C.G.E.U. v. British Columbia (Attorney General),[1988] 2 S.C.R. 214, where Chief Justice Dickson spoke of the courts’ power, “under the rule of law,” to remove barriers to “access to courts” ― although in that case, the barriers at issue (picket lines) were physical, rather than financial. But a different argument, advanced by the West Coast Women’s Legal Education and Action Fund, was to the effect that the right of access to courts was a component of the right to liberty, and maybe also of that to the security of the person, protected by section 7 of the Canadian Charter of Rights and Freedoms, and that the hearing fees infringed this right contrary to principles of fundamental justice, due to their disproportionate effect on women and the least well-off.

The provinces vigorously resisted the Rule of Law argument. BC claimed that the constitution is limited to the documents referred to in s. 52(2) of the Constitution Act, 1982 (though the Supreme Court’s recent decision in L’affaire Nadon seems to make that claim quite implausible). Ontario argued that the Rule of Law, except a very thin version of it recognized in the Manitoba Language Rights Reference, is an aspirational concept which legislatures ought to be left free to implement in their own ways. Québec said it was only an interpretive principle ― although, interestingly, it endorsed the s. 7 of the Charter argument for the hearing fees’ unconstitutionality, which the other provinces that addressed it rejected, noting that civil justice was deliberately excluded from the Charter’s text.

As for the argument that the imposition of fees for access to courts is contrary to what public services ought to be like, it was made by Joseph Arvay on behalf of the Advocates’ Society. Mr. Arvay contended that the resolution of disputes by courts is a public good, to be paid for by the public, and not by one or both of the litigants. Courts, in this respect, are similar to public schools and hospitals, to voting and to the police. They provide general, not private benefits, and their costs should be borne by all, not by some.

Beyond this quest for a constitutional basis for the claim that there is something wrong with hearing fees, much of the debate was concerned with more practical matters. One was the role of exemptions for the less well-off litigants. All the parties arguing that hearing fees are constitutional claimed that the exemptions were an integral part of the fees scheme. Means-testing, they said, is not a new idea ― it happens all the time in the criminal context, when an accused person argues that government ought to pay for his or her lawyer’s services. And having a fee-and-exemption regime, they said, was much better than no fees at all, which would mostly benefit litigious corporations. Those opposing the fees, however, countered that while the fees were said to be imposed out of a concern for the efficiency of courts, requiring additional hearings into the litigants’ impecuniousness would only increase inefficiency, in addition to piling an additional burden on hard-up litigants. And then, there were concerns about the fairness and workability of inquiries into how people organize their finances, which would be necessary to determine who qualifies for an exemption. Justice Moldaver, at least, strongly suggested that this regime was “unworkable.”

The other more practical point that occupied much of yesterday’s argument was the effect of the hearing fees (or lack thereof) beyond the litigants required to pay them in individual cases. For the provinces ― especially B.C., of course ― the fees are a sensible way of rationing a scarce resource ― time in court. Escalating fees encourage litigants to conduct their cases efficiently, and thus free up time for everyone. The fees, even if they are a barrier for individual litigants, promote access to courts overall. Furthermore, if there were no hearing fees, there would be pressure to raise other fees (such filing ones) to help pay for the court system. Yet the hearing fees are not a rational way of promoting efficiency, countered the appellants. The length of a trial is not  a good proxy for the parties’ diligence. A three-day trial, free under B.C.’s scheme, might still be much too long for a simple dispute; a twenty-day trial might be a model of good organization. And the party who has to pay the fees, the one who sets the matter down for trial, might not have the control over the trial’s length. Is it an arbitrary regime, asked Justice Moldaver? Yes, said the Trial Lawyers, as well as others.

All parties agree that, at least as a matter of political morality, it is wrong for people to be prevented from defending or asserting their legal claims by government-imposed fees. But that agreement cannot bridge the questions which the Supreme Court must now resolve. Who ought to pay for the operation of the courts? How ought these payments to be structured? And, most importantly, what ― if anything ― does the constitution have to say about that? For my own thoughts on what the Court should do, stay tuned.

Reticence and Power

The Supreme Court of Canada is in the habit of “suspending” its declarations of unconstitutionality of legislation, especially controversial or important legislation, ostensibly in order to give the legislature which enacted the statute at issue time to re-write it so as to remove the constitutional defect while preserving as much of the substance of the law as possible. Sounds nice, doesn’t it? But in a very interesting post on the UK Constitutional Law Association’s blog, Robert Leckey argues that this trend is worrying. Suspended declarations of invalidity, prof. Leckey claims, are problematic from a Rule of Law perspective, and amount to a tacit abandonment of some of the Supreme Court’s power of judicial review. I am not sure that either of these claims is quite right, but they deserve careful thought.

Professor Leckey’s main exhibit is the Supreme Court’s recent decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, which invalidated the Criminal Code‘s provisions “regulating” prostitution on the basis that they were contrary to the guarantee of “security of the person” in the Canadian Charter of Rights and Freedoms, but suspended the declaration of unconstitutionality for a year, to give Parliament the chance to enact a new regulatory framework for addressing the problems created by prostitution. Prof. Leckey points out, as I did in my review of the Court’s decision, that the Court offers little, if anything, by of justification for the decision to suspend the declaration unconstitutionality. Yet, he says, the suspended remedy is quite problematic, both in this specific case and from a theoretical perspective.

Practically speaking, for one thing, it perpetuates for one more year a legal regime which the Court has found to compromise the security of the women involved in sex work. For another, the suspended declaration of unconstitutionality helps foster a state of uncertainty about the applicable law, which “local authorities are enforcing the provisions to varying extents,” thus “arguably undermin[ing] the rule of law.”

At a more theoretical level, prof. Leckey suggests that ” the suspended remedy in Bedford represents the culmination of judges’ reshaping of their role under the Charter.” In the Charter’s early years, they would simply strike down the laws they found to contravene it. The suspended declaration of unconstitutionality was originally developed as a remedy in order to avoid the dangers of a legal vacuum, and was meant to be exceptional. Now, however, it is justified as a means, not of preventing lawlessness, but “of making space for a legislative response.” In prof. Leckey’s view, the Supreme Court has moved “from using orders under the Charter to cease the effect of laws violating rights to using them to identify legislative priorities,” resulting in an “apparent underuse of [the Canadian judiciary’s] constitutional powers,” contrary to the letter of the constitution.

It seems to me that prof. Leckey makes very important points, but perhaps neglects the counter-points that could be made in defence of the Supreme Court’s practice. For instance, when thinking about the Rule of Law implications of suspending a declaration of unconstitutionality, it is worth noting that, when a legislative response to the Court’s judgment is expected, the suspended remedy helps to maintain the stability of the law, by making for a single change of regulatory framework (when the new law is enacted) rather than two in quick succession (when the old law is struck down and again when a new one is enacted). I’m not sure that this outweighs prof. Leckey’s point about uncertainty, but it is at least a possibility to consider.

As for the theoretical point, I think it is necessary to think about the differences between the laws of which the courts are asked to review the constitutionality. As I have suggested elsewhere (here, for instance), we might want to treat laws that simply expand the coercive power of the state, or entrench incumbents in political office, differently from those which are meant to balance competing social interests. Whether or not these different sorts of laws ought to be reviewed with varying degrees of deference, there is, I think, a much better case to be made for suspending a declaration of unconstitutionality for a law of the “balancing” sort than from a coercive or power-entrenching one. And it may well be that laws belonging to the “balancing” category form a larger part of the Supreme Court’s constitutional docket now than they did in the Charter’s early days, when it was busy weeding out legislation like the Lord’s Day Act, which would account for the proliferation of suspended declarations of unconstitutionality.

Now, even if this general point is right, I think that prof. Leckey is quite right about Bedford. The prostitution provisions of the Criminal Code do not, in my view, balance competing social interests. They are naked repression. Unfortunately, the Supreme Court’s treatment of the remedy issue, particularly its reference to the “great concern” which “many Canadians” supposedly feel about “unregulated” prostitution (par. 167), suggests that it may well regard it as a balancing, rather than a repressive, regulatory scheme.

Still, the misuse of the suspended declaration of unconstitutionality in one case does not prove that this remedy is fundamentally flawed. We need to think more about this issue ― and so does the Supreme Court. Its unwillingness to explain itself does not become an institution that pretends to be circumspect in its use of power. Power deployed without explanation is the opposite of reticence.

Bad Poetry

“A statute is written to entrap meaning, a poem to escape it.” So writes Hillary Mantel in Bring Up the Bodies. That’s true ― normally. But some statutes are in fact written to escape meaning rather than to capture it. They are usually bad statutes, and often bad poetry. What was first mooted as the Charter of Secularism, then became the Charter of Québec Values, and has now become Bill no. 60: Charter affirming the values of State secularism and religious neutrality and equality between women and men, and providing a framework for accommodation requests ― which, following André Pratte, I will from now on refer to, for brevity and clarity’s sake, as the Charter of Shame ― is a case in point.

I have criticized the Charter of Shame repeatedly (my posts on its various versions are collected here), arguing that it was unjust, illiberal, discriminatory, and indeed reminiscent of some (early) Nazi laws. All of these criticisms remain in force. The bill that Bernard Drainville finally presented yesterday differs only in minor ways from the proposals made public a couple of months ago. But having the text of the bill (a pdf document is available here) makes it possible to examine not only the substance but the form which the PQ’s xenophobia has taken.

The bill’s very first clause is a muddle:

In the pursuit of its mission, a public body must remain neutral in religious matters and reflect the secular nature of the State, while making allowance, if applicable, for the emblematic and toponymic elements of Québec’s cultural heritage that testify to its history.

But the real question, all long, has been what it means to “remain neutral in religious matters.” Does it, for instance, mean not having town council meetings open with prayers? What if the prayer, as the Québec Court of Appeal has held, is not really a religious exercise but an element of Québec’s cultural heritage? Can a prayer really be that? The bill does nothing to answer these questions ― it is not meant to.

Consider next the Charter of Shame’s most discussed and most controversial provision, the ban on public employees wearing religious symbols. Mr. Drainville used little drawings to explain that it is meant to apply to the Muslim veil or the yarmulke, as well to large crosses,  but not to  small crosses, or crescent or star of David pendants. But a bill cannot use pitcograms ― it has to find a verbal formula to convey meaning. They say that an image is worth a thousand words, but clause 5 of the Charter of Shame makes do with just 33:

In the exercise of their functions, personnel members of public bodies must not wear objects such as headgear, clothing, jewelry or other adornments which, by their conspicuous nature, overtly indicate a religious affiliation.

What meaning does it convey though? Does a hijab have a “conspicuous nature”? Perhaps to Mr. Drainville it does. To those less fearful of people who look differently from themselves, it might not. To an Islamist fanatic, it is not the hijab but an uncovered head that is conspicuous. A court called upon to interpret this provision will not adopt a fanatic’s viewpoint ― but must it adopt Mr. Drainville’s? Conversely, a small cross of the sort that many Christians surely “overtly indicates a religious affiliation,” and ― depending on just how it is worn ― it can easily be visible. Who says it is not conspicuous?

Another well-publicized requirement of the Charter of Shame is the ban on full face veils that applies both to public employees and to those receiving public services. But does it? Clause 7 provides that “[p]ersons must ordinarily have their face uncovered when receiving services from personnel members of public bodies” (emphasis mine), and its second paragraph specifically contemplates the possibility of “accommodation.” Presumably, Mr. Drainville is not quite heartless enough to throw niqab-wearing women out of emergency rooms, but reading this bill, we can hardly tell.

And so it goes on, from fudge to equivocation to understatement. Will the obligations imposed by the Charter of Shame apply to those in the private sector who do business with the government? If the government so decides if “warranted by the circumstances” (clause 10). What will happen to employees who refuse to take off a religious symbol? They’ll get a talking to (clause 14). And what then? Will they be fired? Silence.

It is a staple of formal accounts of the Rule of Law that making law public is likely to make it, if not substantively better, then at least less bad, because legislators do not like to make their bad intentions clear. Yet we know that this is not always so; openly iniquitous laws are sometimes enacted. But it is true often enough. And so with the Charter of Shame: it is iniquitous enough, and yet in many ways it dares not proclaim the discrimination it works openly.

It is indeed a statute written to escape its own meaning. It is poetry, poetry of the worst kind, poetry that gives the Vogons’ a run for its money. It must not become law.

Storm and Havoc

Time for more shameless self-promotion, after my rant on Thursday about not being cited by the Québec Court of Appeal. A paper of mine, called “Storm and Havoc: The Rule of Law and Religious Exemptions,” is coming out any time now in the Revue Juridique Thémis de l’Université de Montréal, a mere three years after it started life as my LL.M. thesis. You can download it from SSRN.

Here is the abstract:

Exemptions from laws of general application for members of religious groups are controversial. One reason for this is an exemption seems to elevate those to whom it is granted above the ordinary law, and to make them a law unto themselves. This article examines the theoretical foundation for such claims: the conflict between religious exemptions and the ideal of the Rule of Law, influential accounts of which emphasize the requirement of legal generality. It inquires into the different meanings of legal generality and explains why religious exemptions are problematic from a Rule of Law perspective. It scrutinizes the usual defences of religious exemptions and points out their weaknesses. Nevertheless, it argues that because religious freedom, which exemptions help secure, and the Rule of Law are based on the same philosophical foundation, the dignity of the person as an autonomous moral agent, the relationship between religious exemptions and the Rule of Law is not purely antagonistic. The tension which the critics of exemptions expose is real, but some religious exemptions ought to be granted. The article outlines a framework for deciding when religious exemptions should be granted and when denied, and concludes with some observations on the institutions that can be entrusted with deciding whether to grant an exemption.

And here’s a bit from the introduction (sans footnotes):

The desideratum that laws be general, albeit expressed with varying degrees of strength, is a staple of various accounts of the Rule of Law. One of its best-known formulations belongs to A.V. Dicey, who meant by “the rule of law […] not only that […] no man is above the law, but […] that […] every man […] is subject to the ordinary law of the realm”. Dicey was most concerned with legal privileges for the government and its officials, but his ideal of “legal equality” naturally implies also that no class of private citizens ought to bear burdens or enjoy privileges not imposed or conferred upon others.

However, a law that is on its face the same for all citizens may in fact impose unique burdens on some of them. Those disproportionately affected by the law are likely to demand an exemption from its application. …

Whatever the forum and the circumstances in which a demand [for an exemption] is made, it conflicts with the ideal of the Rule of Law. … However, because the realization of the ideal of the Rule of Law is a matter of degree, and is in any event “just one of the virtues which a legal system may possess and by which it is to be judged”, it may yield to other ideals that we hold dear. …

The question this article sets out to explore is whether religious freedom is one such ideal. In other words, can the claim that conforming to a general law would be an insufferable burden on one’s freedom of religion justify the creation …  of an exemption from that general law in favor of the claimant? Today this issue is perhaps most salient in the context of the larger debate on the role of religion in a democratic, pluralist polity. Yet the fear that religious observance, rooted as it is in strong feelings and commitments, will lead to disrespect for the law and perhaps even a general state of lawlessness is not new. Even supporters of religious freedom have long noted it, as appears from the admixture of trepidation and exhilaration in Lord Acton’s description of “the equal claim of every man to be unhindered by man in the fulfillment of duty to God [as] a doctrine laden with storm and havoc […] and the indestructible soul of the revolution”.

The paper was, needless to say, inspired by the controversy over religion that has been going on in Québec ever since the Supreme Court’s decision in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256. It does not speak directly to the most recent and most shameful version of this controversy, that about the “Charter of Québec Values” and its ban of “conspicuous religious symbols” for public employees. But it does include an argument in defence of religious liberty and of the respect of each believer’s subjective views, which are, I think, quite topical. I might blog in more detail about some of my arguments, but in the meantime, I encourage you to read the whole thing. It is, I am afraid, a bit long, but ― so the anonymous reviewer told me ― a pleasant read.