Not Too Late

Back in February, I wrote about the Court of Québec’s judgment in R. v. Cloud, 2014 QCCQ 464, in which Justice Patrick Healy sharply criticized the “victim surcharge” which recent amendments to the Criminal Code require courts to impose in all criminal cases on top of any other sentence. Mr. Cloud, the accused, had not challenged the constitutionality of the surcharge, but Justice Healy was convinced of its arbitrariness and disproportionality, and decided to minimize its effects by imposing a nominal fine on Mr. Cloud, which resulted in the surcharge being calculated as a percentage of the fine (and thus a very small amount) rather than at 100$ per summary conviction offence and 200$ for an indictable offence. Since then, other judges in Québec have followed this approach.

The Crown ― whose lawyers in Ontario have described it as a judicial “insurrection” ― has appealed Mr. Cloud’s sentence and a number of others, seeking to have the full surcharge imposed on the offenders concerned. They, in turn, have asked the Québec Court of Appeal for leave to challenge the constitutionality of the “victim surcharge” on the basis that infringes sections 7 and 12 of the Charter. Last week, in R. v. Cloud, 2014 QCCA 1680, a split judgment from which Chief Justice Nicole Duval Hesler dissented, the Court denied leave, saying that the case did not meet the narrow criteria for raising a new (constitutional) issue for the first time on appeal. (Note that this is a somewhat different situation from that which arose in R. v. Mian, 2014 SCC 54, about which I blogged last week; there it was the Court of Appeal itself which had raised the new issue, whereas here it’s a party that seeks to do so.)

Generally speaking, a party cannot raise on appeal an issue that he or she failed to raise at fist instance. But courts of appeal have a discretionary power to make exceptions to that principle, in particular when a change in the state of the law changes after the trial decision is delivered, for example due to a declaration of unconstitutionality issued in a separate case. The test, as the majority judgment and the dissent agree is that there must be enough evidence in the file to allow the appellate court to rule on the new issue, and the failure to raise it at first instance cannot be the result of a strategic choice by the party that seeks to raise it on appeal. On the other hand, the appellate court must also be satisfied that not considering the new issue will not result in an injustice.

Justice Doyon, writing for himself and Justice Hilton, holds that the criteria for allowing the respondents to raise the issue of the “victim surcharge”‘s constitutionality are not satisfied. For one thing, he finds, the respondents made the deliberate decision not to raise the issue at trial, and must now live with the consequences of their choices; although they say their financial situation prevented them from arguing the constitutional point at first instance, there is no reason to believe that it has now changed. For another, the evidence in the record is not sufficient to dispose of the constitutional issue. The Crown argued that it would want to introduce evidence, including testimony, about the respondents’ financial situation and ability to pay the “victim surcharge,” as well as evidence establishing the benefits of the surcharge for the purposes of defending it under s. 1 of the Charter. Finally, there is no injustice in not allowing the respondents to raise an Ontario decision in which a provincial court judge proprio motu declared the “victim surcharge” unconstitutional.

The Chief Justice disagrees with Justice Doyon’s assessment. (I should note that I have worked for Justice Duval Hesler, as she then was, back when I was in law school, and have kept in touch with her; while I generally think the world of her and am, no doubt, biased, I have not discussed this case with her.) The Chief Justice points to the decision of the Ontario Court of Justice in R. v. Tinker, 2014 ONCJ 208, issued well after Justice Healy’s decision in Cloud, which declared the “victim surcharge” unconstitutional. She argues that there is enough evidence regarding the respondents’ financial situation, and that introducing new evidence regarding s. 1 of the Charter on appeal ― or indeed at the Supreme Court ― is not unheard of. The respondents, in her view, did not expressly renounce constitutional arguments at first instance, and the interests of justice require allowing them to raise them on appeal, because of a principle that “the Court shall not be compelled to apply the mandatory surcharge if its constitutionality is seriously challenged” (par. 49). Tinker, while not equivalent to a Supreme Court decision changing the law, supports the seriousness of the respondents’ constitutional challenge.

I believe that the Chief Justice is right, and indeed that there is more to say in support of her conclusion. For one thing, Tinker is no longer the only case in which the “victim surcharge” was found to be unconstitutional ― there is also R. v. Michael, 2014 ONCJ 360, about which I wrote here. (In fairness, yet another decision, R. v. Javier, 2014 ONCJ 361, which I criticized here, refused to follow Michael and upheld the “surcharge.”) For another, it bears noting that neither Tinker or Michael nor Javier (which, admittedly, did not involve a fully-fledged constitutional challenge) suggest that there is serious, or “voluminous” (as Justice Doyon suggests) evidence in support of the Crown’s claim that the surcharge can be justified under s. 1 of the Charter. Justice Paciocco’s reasons in Michael devote a single paragraph to s. 1. Perhaps he blithely ignored the Crown’s submissions on this point but, considering the rest of these reasons (which I described as “somewhat fastidious”), I find that difficult to believe.

In reality, the Crown’s approach to this application continues its record of persistent hypocrisy in the matter of the “victim surcharge.” In some cases, including in the Cloud appeal, as well as and to journalists, its lawyers argue that judges lack the power to circumvent or minimize the “surcharge” by imposing nominal fines. In others, such as Michael, they argue that they may, and indeed ought to, do so in order to avoid the constitutional issue. In the cases where the constitutionality of the “surcharge” was argued, they seem to have failed to introduce any evidence worth discussing to support their position, yet they rely on the need to introduce such evidence in order to avoid debating the constitutional issue at the Québec Court of Appeal. It’s too bad that the majority of the Court of Appeal fell for this trick. One can only hope that the panel that hears the appeal on the merits will be aware of what is going on, and will call the Crown out on it. For that, at least, it is not yet too late.

The Power of Google

I seem never to have blogged about the “right to be forgotten” enshrined into European law by the European Court of Justice (ECJ) in a judgment issued in May. An interesting recent blog post by Paul Bernal allows me to do offer a few random observations on the matter. Better late than never, right?

In a nutshell, the “right to be forgotten” allows a person to request a search provider (for example, Google) to remove links to “inadequate, irrelevant or excessive” ― even if factually correct ― information about that person for search results. If the search provider refuses, the person can ask national privacy authorities to compel the removal. Google is most dissatisfied with being asked to handle thousands of such requests and to weigh the privacy interests of those who make them against the public interest in access to information (as well the freedom of expression of those providing the information in the first instance). It says that it cannot perform this balancing act, and indeed its first stabs at it have sometimes been very clumsy ― so much so that, as prof. Bernal explains, people have suspected it of doing a deliberately poor job so as to discredit the whole concept of the right to be forgotten.

Google has responded by setting up a group of experts ― ostensibly to advise on implementing the right to be forgotten but really, prof. Bernal implies, to make sure that the conversation about it happens on its own terms. And that, according to prof. Bernal, includes not paying attention to “the power of Google” ―its “[p]ower over what is found – and not found” about anyone, reflected by the way we use the phrase “to google someone”; its agenda-setting power; and its ability to influence not only journalists and experts, but also policy-makers. Prof. Bernal points out that Google creates (and tweaks) the algorithms which determine what results appear and in what order when a search is run, and that it has not always upheld freedom of expression at the expense of all other values. Google systematically removes links to websites due to copyright-infringement, as well as for a variety of other reasons. Its right to be forgotten tantrum should be viewed in that context, says prof. Bernal; we mustn’t forget Google power, and the variety of ways in which it exercises it.

Fair enough. I have myself written (notably here and here) about Google’s dual, and conflicted, role as at once a speaker and a censor. Google wants to be treated as a speaker ― and granted freedom of speech ― in designing its search algorithms. It also takes on a role of regulator or censor, whether on behalf of its own values and priorities (commercial or otherwise), those of its clients or partners, or those of governments. And there is a standing danger that Google will be tempted to play its role as regulator and censor of the speech of others in such a way as to gain more leeway (especially from governments) when it comes to is own.

Yet to my mind, this inherent conflict is, if anything, more reason to believe that making Google into an arbiter of private and public interests is a bad idea. The ECJ offloads the responsibility of balancing individual privacy rights and public interest in access to information on Google and its competitors, at least in the first instance, but why would we want to give such a responsibility to companies that have such a twisted set of incentives? Prof. Bernal is right that Google is not an unconditional defender of freedom of expression ― but instead of concluding that it might as well compromise it some more, this time in the name of privacy, isn’t that a reason for thinking that we cannot rely on it to strike the right balance between the rights and interests implicated by the right to be forgotten?

Another thing that we might want to keep in mind when we think of “the power of Google” in the context of the right to be forgotten, is the nature of that power. It is not, like the power of the state, a coercive one. In a sense, Google has a great deal of market power, but the users of its search service hardly feel it as “power.” We know that we have easily accessible alternatives to Google (notably, Microsoft’s Bing, and Yahoo!). We just don’t feel (for the most part) like using them ― for whatever reason, but not because anybody forces us to. And I think it matters that the power of Google is not a collective power of people acting together (like the power of the state) but, if that’s the right word, a composite power ― the sum of a great number of individual actions more or less insignificant by themselves. Despite the fact that, as prof. Bernal rightly points out, Google’s algorithms are not somehow natural or neutral, it is, in a real sense a conduit for the disparate actions and interests of isolated individuals, rather than a vehicle for the expression of their collective will. To me, that makes the power of Google, at least this aspect of it, a rather less threatening one.

It is also a democratizing one. By making it easier to find information about someone, it makes such research accessible not only to those who have a staff of researchers (or police officers, or intelligence agents!) at their disposal, but to ordinary citizens. And this is precisely what worries the advocates of the right to be forgotten. It is indeed a curious right, one that apparently only exists online. Nobody says that libraries or archives should purge information about people once it becomes “irrelevant or excessive.” (Indeed, at least for now, the right to be forgotten does not even require substantive information to be taken down from the Internet, or even links to such information to be removed from ordinary websites. They must, it seems, only be expunged from search results.) So someone with a lot of time and/or money on his or her hands can still find that information. It’s those without resources to expend on an extended investigation who must be deprived of it. That too, I think, is something to keep in mind when thinking about the right to be forgotten.

This all might not amount to very much. Insofar as prof. Bernal calls for nuance and a fuller appreciation of the facts in thinking about the right to be forgotten and Google’s role in implementing it, I second him. If have a distinct message of my own, it is probably that an actor having “power” is not, without more, a reason for pinning any particular responsibility on it. We should be wary of power, whatever its form, but it doesn’t follow that we should burden anyone powerful in whatever way we can think of. If anything, power should be checked and balanced ― balanced, that is, with countervailing powers, not with responsibilities that can, in the hands of the powerful, become excuses for further self-aggrandizement more than limits on their action.

H/t: Yves Faguy

Where Credit Is Due

In a recent decision, R. v. Safarzadeh-Markhali, 2014 ONCA 627, the Court of Appeal for Ontario invalidated yet another piece of the federal government “tough on crime” legislative programme, namely subs. 719(3.1) of the Criminal Code, which has the effect of preventing judges from granting enhanced credit for pre-sentence imprisonment to offenders who are not released on bail primarily due to past convictions. (A separate provision of the Criminal Code requires a judge who denies bail to an accused based on his or her criminal history to produce an endorsement to this effect.) Mr. Safarzadeh-Markhali argued that this rule infringed s. 7 of the Charter because it arbitrarily deprived him of liberty. The trial judge agreed, and the Crown appealed, arguing that a mere lack of proportionality did not infringe s. 7, that denials of enhanced credit due to past convictions were not grossly disproportionate, and that in any event they were justified under s. 1 of the Charter.

Writing for the unanimous Court of Appeal, Justice Strathy (as he was at the time of the hearing ― he is now the Chief Justice of Ontario), started by observing that the purposes of the impugned provision and, more generally, of the Truth in Sentencing Act (TISA) of which it was a part were to limit the credit which offenders received for pre-sentence custody, partly to punish them more harshly and partly to remove a perceived incentive to prolong proceedings so as to increase the credit to which they would be entitled, and also to make the process of granting credit more transparent. Justice Strathy also discussed the Supreme Court’s decision in R. v. Summers, 2014 SCC 26 (which I blogged about here), where the Supreme Court held that the TISA had to be interpreted in accordance with the general principles and purposes of sentencing as set out in the Criminal Code, including proportionality (between the offence and the sentence) and parity (of sentences between similarly situated offenders); the Supreme Court specifically referred to the injustice of sentences for similar offences varying depending on whether an offender had been able to obtain bail which, in turn, is often a function of criteria unrelated to the purposes of sentencing.

Turning to the s. 7 analysis, Justice Strathy finds it obvious that subs. 719(3.1) deprives those subject to it of liberty, since it results in longer terms of incarceration. The Crown, remarkably, purported not to concede that point, but the real issue is whether the deprivation of liberty is in accordance with the principles of fundamental justice. The relevant one, he says, is “proportionality in sentencing” (par. 73). It is, he argues,

understood and endorsed by all Canadians and is applied in our courts on a daily basis. … Canadians understand that a sentence must be fair, in all its aspects. The punishment must fit the offence and must fit the offender. (Par. 73-74)

Furthermore, the principle of proportionality in sentencing includes that of parity, the idea that similarly situated offenders should receive similar punishment.

The Crown argued that the relevant principle is not proportionality tout court, but “gross disproportionality.” Indeed, the Supreme Court seemed to suggest as much in R. v. Malmo‑Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571. But Justice Strathy finds that this case is distinguishable, the difference being one between process and result:

the principle of proportionality governs the sentencing process, while the standard of gross disproportionality applies to the result. An offender is entitled to a process directed at crafting a just sentence. (Par. 82)

What this means is that

the principle of proportionality prevents Parliament from making sentencing contingent on factors unrelated to the determination of a fit sentence. In this sense, the principle of proportionality is closely associated with the established principle that a law that violates life, liberty or security of the person cannot be arbitrary. (Par. 85)

Justice Strathy concludes that the denial of enhanced credit to those offenders whose criminal history prevented them from being released on bail infringes the principle of proportionality in sentencing, in that it makes the length of an offender’s imprisonment contingent on factors not relevant at a sentencing stage. He points out that even of two accused persons with identical criminal histories, one may be granted bail while the other will be denied it if the former has stronger community ties or better sureties than the latter. Alternatively, an accused who doesn’t apply for bail in the first place (including because he knows that he couldn’t get it because of his criminal history!) would not actually be denied bail based on his criminal history, and would thus be entitled to enhanced credit. As Justice Strathy points out,

[o]ne effect of s. 719(3.1) will be that the most vulnerable members of society – the poor, those without a support network and Aboriginal people – may be reluctant to exercise their bail rights out of concern that the denial of bail will result in … a greater proportion of their sentence being served in custody. (Par. 95)

In short, subs. 719(3.1)

skews the sentencing process, by making the outcome of the bail process a determinant of the length of the custodial portion of the sentence. But the bail process, and the considerations that go into granting or denying bail, are markedly different from the sentencing process. (Par. 96)

This interference with the sentencing process infringes s .7 of the Charter. While Parliament can choose to impose harsher sentences on repeat offenders, it has gone about it the wrong way:

like many attempts to replace the scalpel of discretion with a broadsword, [subs. 719(3.1)] misses the mark and results in unfairness, discrimination and ultimately unjust sentences. (Par. 101)

As for justifying this infringement of s. 7 under s. 1, Justice Strathy holds that it is not rationally connected to the objective of preventing manipulation of the pre-trial process, since it will prompt accused persons to avoid seeking bail, thus engaging in “the very manipulation the TISA was designed to prevent” (par. 114). Nor is it minimally impairing of offenders’ right to liberty; nor do its (dubious) benefits exceed its real harms.

Needless to say, I like this result. And I think it reflects sound legal principles. As Justice Strathy shows, the denial of enhanced credit to offenders on the basis of a denial of bail results in similarly situated people being punished differently for reasons that have nothing to do with their culpability or the principles of sentencing more broadly, and if that’s not contrary to “principles of fundamental justice”, then it’s hard to imagine what is. At the same time, I wonder about the specifics of Justice Strathy’s reasoning. This is a criticism not of him (or his colleagues on the panel), but of the Supreme Court’s jurisprudence which forced him to engage in some legal contortionism.

It seems to me that the best description of the substantive constitutional problem with subs. 719(3.1) is actually that it is a breach of equality under the law, of the principle that like cases ought to be treated alike. Someone unfamiliar with the Supreme Court’s Charter jurisprudence might think that the natural way of addressing this problem is by invoking s. 15(1) of the Charter, which after all provides that “[e]very individual is equal before and under the law.” But since the Supreme Court has read s. 15(1) as only a protection against discrimination on a fairly narrow category of prohibited grounds, that straightforward argument is foreclosed, and the courts have to import equality under the law through the back door of s. 7 (which limits its applicability to situations where life, liberty, or security of the person are stake).

And then, in the s. 7 jurisprudence, there this concept of “gross disproportionality,” eerily reminiscent of the now-defunct “patent unreasonableness” in administrative law. To get out of the difficulty posed by the fact that some administrative decisions were deeply disturbing without quite appearing “patently unreasonable,” the Supreme Court tried introducing the concept of “reasonableness simpliciter” ― before realizing that the distinction between the two sorts of (un)reasonableness was conceptually bizarre and practically unworkable.

Justice Strathy seems to be trying to do something similar here, being boxed in by the wording of “gross disproportionality” but unwilling to leave an arbitrary law standing. But I’m not persuaded by his distinction between the process and result in sentencing. Does it even make sense to speak of proportionality in relation to process? (In civil litigation, a procedure is said to be proportional or not depending, roughly, on whether the time and resources it requires are proportional to its benefit for the truth-finding process, but here we’re not speaking of the same thing at all ― we’re not asking about extra hearings or something like that.) The distinction seems to be a workaround that allows Justice Strathy to escape an unfortunate but binding precedent, but it only adds to the conceptual complexity of an already messy area of the law.

Given its track record (and its uncompromising position in this case), we can expect the federal government to appeal. And, given in its growing track record in “tough on crime” cases, we can expect the Supreme Court to reject this appeal. I certainly hope it will do so. But I also hope that it will use the opportunity for some clarification of the law.

UPDATE: Michael Spratt comments on the Court of Appeal’s decision ― and points out that there is more of the same to come from the government.

Ideology and Canadian Judges

In case you missed my self-promotion yesterday, my new post a the CBA National Magazine’s blog is up. It argues that we need to change the ways in which we think about and study judicial ideology in Canada. Simply importing American models, which rely on using the party of the president who appointed a judge, or on the perceived ideological valence of judicial decisions, as a proxies for the individual judges’ ideological leanings does not work well in Canada, because our legal culture lacks parallels to “liberal” and “conservative” legal worldviews that have in the last few decades been so familiar south of the border.

One consequence of this is that Liberal and Conservative prime ministers draw on pretty much the same pool of candidates when picking their judicial appointees, making the prime minister’s party a (nearly?) useless proxy for judicial ideology. The other is that classifying case outcomes as “liberal” or “conservative,” already a fraught exercise in the United States ― think, for example, of the way in which freedom of religion, and especially religious exemptions, have gone from being a “liberal” cause along with other civil rights to a conservative one in recent years ― is an almost impossible one in Canada. In addition to my own examples from the Supreme Court’s federalism jurisprudence, Emmett Macfarlane ― who has studied and written the ideological influences on the Supreme Court of Canada ― provided more solid evidence of this in his tweets responding to my post:

And yet, Canadian judges do have ideological preferences. Of course they do ― I have argued here that constitutional law in particular is inescapably ideological and, perhaps to a lesser degree, this is true of any other area of the law is well, although judges may be more constrained in areas where the applicable texts are more precise and the precedents more settled. It’s just that we tend not to notice these ideological preferences because most all Canadian judges share them ― again, because there are no “alternative” legal worldviews with any purchase in the Canadian legal community; in particular, as I have explained here, the Conservative party has not even tried developing a constitutional theory of its own.

In this recent essay, Bob Tarantino argues that Canadian conservatives and libertarians really need to do so, because

the law develops in an impoverished way if only “progressive” views dominate and inform decisions from the bench. For the vitality of the law to be maintained, judicial decision-making must be a crucible of debate over what the law is, its purpose and its application, from a variety of perspectives. When it is possible to immediately identify “progressive” judges, but impossible to identify “conservative” or “libertarian” judges, the bench and the law risk myopia and stagnation.

He is probably right, although more ideological diversity on the bench has costs as well as benefits, as we can see by looking at the American example. At a certain point, ideological conflict crosses the line between vitality and feverishness, and the law will suffer if it is seen, as American constitutional law may be in danger of being seen, as little more than a battleground for ideological and, worse, partisan conflict.

In any case, before we start advocating, we need to understand. And in order to understand the effects of ideology on Canadian courts, we need to change the ways in which we think about it.

Raising Issues

Normally, a common law court decides a case brought before it on the issues raised by the parties. But sometimes it can ― and occasionally even has to ― raise an issue on its own. When it can do so, and how it must go about doing this are the main topics discussed in R. v. Mian, 2014 SCC 54, which the Supreme Court decided last week.

The case was an appeal from a decision on a voir dire to exclude incriminating evidence because it took the police more than 20 minutes to inform Mr. Mian of the reason for his arrest, and still longer for them to inform him of his rights. The Alberta Court of Appeal, however, was concerned about a question which the defence lawyer asked one of the police officers involved during cross-examination. The Crown hadn’t objected to the question at the time, and didn’t raise the matter in its submissions on appeal, but the Court of Appeal invited the parties to make written submissions on the matter and asked them to address it at the hearing, eventually allowing the appeal on the basis that the judge of first instance had failed to recognize the question’s impermissibility and that it influenced his reasoning. And so the main question for the Supreme Court was whether the Court of Appeal was right to raise this issue on its own.

As a general matter, says Justice Rothstein, writing for the unanimous Court, appellate courts may raise new issues. But it is a power they must exercise sparingly.

First though, it is important to understand what does and what doesn’t count as a new issue. Justice Rothstein explains (at par. 30) that

[a]n issue is new when it raises a new basis for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the parties. Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties … and cannot reasonably be said to stem from the issues as framed by the parties.

However, questions asked at oral argument do not necessarily raise new issues, whether they address “components of the grounds of appeal put forward by the parties,” including by probing them in greater detail and by raising sub-issues, “or … go outside of those grounds in an aim to understand the context, statutory background or larger implications,” which “may be necessary for the court to gain a more complete understanding of the issues at hand” (par. 32). A further category of issues that will not be considered as “new” are those “that form the backdrop of appellate litigation, such as jurisdiction, whether a given error requires a remedy and what the appropriate remedy is the standard of review” (par. 34). The idea here seems to be that since such issues can arise on any appeal, “parties should not require notice to address them” (par. 34).

If it identifies a “new” issue, an appellate court must decide whether to raise it for the parties. The two competing considerations here are the integrity of an adversarial system that lets the parties make their own cases and, crucially for Justice Rothstein, thereby allows “judicial decision-makers remain independent and impartial and are seen to remain independent and impartial” (par. 39), and the need to actually do justice under the law, which sometimes requires intervening into the adversarial debate. Balancing these considerations, Justice Rothstein concludes that an appellate court may raise a new issue only if failing to do so will risk an injustice, and only if it can do so without appearing biased. He explains that “[o]f essence here is that courts cannot be seen to go in search of a wrong to right” (par. 42).

Failing to raise an issue will risk an injustice when “there is good reason to believe that the result would realistically have differed had the error not been made” (par. 45). But, Justice Rothstein cautions, there will not often be good reason to think so. While this can happen more frequently when one of the litigants is self-represented, “[i]t will only be in rare cases that counsel on both sides will have failed to identify an issue that would realistically have affected the result” (par. 48). In addition, the appellate court must be sure of having the jurisdiction to consider the issue, of having a sufficient factual record on the basis of which to do so, and of being able to avoid imposing a “procedural prejudice” (par. 52) on one of the parties.

To avoid procedural injustice, an appellate court “must make the parties aware that it has discerned a potential issue and ensure that they are sufficiently informed so they may prepare and respond” (par. 54), whether the response is written, oral, or both. At all times, “natural justice and the rule of audi alteram partem will have to be preserved” (par. 59). And, while courts should be careful to avoid giving the impression, in the notice they give to the parties, of having prejudges the issue, it is not necessary, save in rare cases, for a judge or panel who raised a new issue to recuse themselves.

Practically, this is all logical, sensible stuff, although I think there is some tension between Justice Rothstein’s suggestion that an appellate court may intervene in the adversarial process when it sees a risk of error that affects the outcome, and his claim that such cases will be very rare. Is the claim really right? Is it the case that lawyers will seldom miss material issues? I hope that this is indeed so.

On a theoretical level though, I wonder whether Justice Rothstein is right that the reason why courts should be reluctant to raise new issues is the danger of appearing biased. That’s surely a part of it. But I would have thought that no less, and perhaps more, important is the need to limit judicial power. As Fabien Gélinas argues in this fascinating paper, various rules that prevent courts from considering issues ― such as the rules on standing, ripeness/mootness, and justiciability ― all serve to circumscribe the courts’ power, justifying the well-known description of the judiciary as the “least dangerous branch” of government. I thought that the presumption against raising new issues serves the same purpose. Justice Rothstein suggests otherwise.

Be that as it may, he goes on to find that in this case, there was no need to raise the issue of the impermissible cross-examination question. It was not as significant as the Court of Appeal made it out to be, and Crown lawyers clearly did not think it was. The Court of Appeal should not have second-guessed them.

Hate Speech in Context

Exactly one year ago yesterday, a mosque in the Québec town of Saguenay was vandalized with what the vandals claimed was pig blood. The attack was clearly intended to show Muslims that they were not welcome in Saguenay (and perhaps in Québec generally), which is, according to Jeremy Waldron, precisely “the harm in hate speech” which criminal law can and ought to combat. Despite this, I argued at the time that “the harm is not in hate speech,” because an isolated incident of this sort does not send much of a message. What does, by contrast, is xenophobic discourse by politicians ― such as that which was used by members of Pauline Marois’ PQ government to justify Québec’s infamous “values Charter.” As I wrote then,

[b]ecause it comes from on high, [such discourse] does much more than a lone attack to tell minorities that they are not welcome in Québec, and to tell those who would exclude minorities from public life that they are not alone. But, because these messages are being sent by sophisticated, intelligent people, they look and sound nothing like the crude mosque attack. They would not, of course, qualify as hate speech by any standard …

A year on, the PQ has been thoroughly defeated at the polls, and Québec is a very different place as a result, as Jonathan Kay observes in an insightful column in the National Post. He notes that

[d]uring the 18-month Marois reign, even the most petty ethnic or linguistic dispute became grist for widespread anxiety and bitterness — because the PQ was desperate to seize on any pretext to fire up the nativists and separatists who comprised its core supporters.

As a result, many members of minority communities were considering leaving the province. As the zealots of “secularism” pontificated about the incompatibility of “ostentatious” religious symbols and “Québec values,”

the shrill nastiness of Ms. Marois and her administration seeped into the everyday life of ordinary Quebecers. On the subway, in restaurants, at gas stations, interactions between English and French, Jew and gentile, Muslim and non-Muslim, became more fraught.

Religious minorities in Québec were suffering precisely the harms prof. Waldron associates with hate speech ― a feeling of being unwelcome, of being second-class citizens, of having to hide their identities and beliefs. (Indeed, Mr. Kay points out that even members of the majority group who did not support the “values Charter” were made to feel these things to some extent, by being labelled as traitors of sorts.) But of course nothing that Ms. Marois or her henchmen said ever reached the threshold of “hate speech.” There was no need for that. We all understood what was going on.

Conversely, as Mr. Kay points out, now that there is a different government, which is not much interested in identity politics, attempts to re-ignite the toxic flames of linguistic wars, or even occasional outbursts of outright xenophobia (such as a notorious journalist’s anti-Semitic comments), are not having the same effect. Because they have no support among the authorities, they do not provoke anything like the same anxiety. Yet Mr. Kay is to point out that “the only reason that such kooks can be written off as ‘irrelevant’ is that Pauline Marois’ Parti Québécois got the boot in April’s provincial election.”

The story of Québec in the last year shows, I think, where prof. Waldron’s work on hate speech is right, and where it is mistaken. Prof. Waldron identifies an important preoccupation that members of a liberal, welcoming society should share: we should all seek

to provide assurance to all citizens, and particularly to members of vulnerable minorities, that they are and will be treated as members of society, endowed with rights and deserving concern and consideration.

But he goes wrong by identifying hate speech as the pressing threat to this objective, and criminal law as the means to address it. The harm, once again, is not in hate speech. What really undermines the assurance which prof. Waldron rightly says is important are not the extreme vituperations of a few kooks, but an embrace of a xenophobic discourse by the powerful, regardless of whether it raises to the level of hate speech. And because the category of speech that is problematic in this way if coming from the mouth of authority is much broader than that of hate speech, criminal law cannot be the solution. The problem is one of political morality, and the solution must be found in the same realm.

Felix Peccatum

There was an interesting piece in The Atlantic a couple of weeks ago, in which Ethan Zuckerman argued that we should, as the subtitle would have it, “ditch the [internet's] ad-based business model and build a better web.” Accepting internet content should be free to access, online services free to use, and that the costs of hosting the contents and providing the services can be paid for by tying them to advertising was, Mr. Zuckerman says, “the original sin of the web.” It sounded like a good idea at time, but turned out badly. It is time to repent, and to mend our ways. But is it?

Mr. Zuckerman argues that the ad-based business model created an “internet [that] spies at us at every twist and turn.” In order to persuade potential investors to support a nascent website, its creators must convince them that the ads on that site “will be worth more than everyone else’s ads.” And even if the ads are not actually worth very much, the potential for improvement is in itself something that can be marketed to investors. The way to make the ads on a website worth more than those on others ― say, on Facebook ― requires “target[ing] more and better than Facebook.” And that, in turn, “requires moving deeper into the world of surveillance,” to learn ever more information about the users, so as to make the targeting of ads to them ever more precise.

Over the years, the progressive creep of online tracking and surveillance has

 trained Internet users to expect that everything they say and do online will be aggregated into profiles (which they cannot review, challenge, or change) that shape both what ads and what content they see.

Despite occasional episodes of unease over what is going on, even outright manipulation by the providers of online services is not enough to turn their users off. As with private service providers, says Mr. Zuckerman, so with governments:

[u]sers have been so well trained to expect surveillance that even when widespread, clandestine government surveillance was revealed by a whistleblower, there has been little organized, public demand for reform and change.

Trust in government generally has never been lower, yet it seems that online, anything goes.

Mr. Zuckerman points out that the ad-based business model had ― and still has ― upsides too. When it took off, it was pretty much the only way “to offer people free webpage hosting and make money.” Initially at least, most people lacked the means ― the technical means, never mind financial resources ― to pay for online services. Offering them “free” ― that is to say, by relying on advertising instead of user fees to pay for them ― allowed people to starting using them who would never have done so otherwise:

[t]he great benefit of an ad supported web is that it’s a web open to everyone. It supports free riders well, which has been key in opening the web to young people and those in the developing world. Ad support makes it very easy for users to “try before they buy.”

Indeed,

[i]n theory, an ad-supported system is more protective of privacy than a transactional one. Subscriptions or micropayments resolved via credit card create a strong link between online and real-world identity, while ads have traditionally been targeted to the content they appear with, not to the demo/psychographic identity of the user.

In practice, well, we know how that worked out.

Besides, says Mr. Zuckerman, not only did the ad-based internet do away with our privacy, it also produces “clickbait” that nobody really wants to read, is increasingly centralized, and breaks down into interest-based echo chambers.

The solution on which Mr. Zuckerman rests most of his hopes for a redemption of the web is a move from ad-based to subscription based business models. He points out that Google already offers companies and universities the possibility of paying for its products in exchange for not offering their employees or students the ads that support its free Gmail service. And he is confident that “[u]sers will pay for services that they love,” even if a shift to subscription-based business models would also mean that users would simply abandon those for which they have no deep affection. This, in turn, would produce “more competition, less centralization and more competitive innovation.” A shift to subscription-based web service would require new means of payment ― something with lower transaction costs than credit-card systems or PayPal. Such technologies do not yet exist, or at least are not yet fully ready, but Mr. Zuckerman is hopeful that they will come along, and allow us to move away from the “fallen” ad-based internet.

But even if a return to the online garden of Eden ― which, much like “real” one, never actually existed ― were technically possible, would it be desirable? Mr. Zuckerman acknowledges that whatever business model we turn to, “there are bound to be unintended consequences.” Unintended, perhaps, but not entirely unforeseeable. Even if transaction costs can be lowered, a subscription-based internet would be less accessible for many people, in particular those in the less well-off countries, the young, and the economically disadvantaged. Those who, in many way, need it most. Besides, it seems doubtful to me that a subscription-based internet would generate more innovation than the current version. As Mr. Zuckerman points out, the ad-based model has the virtue of letting users try new services easily. It also means that abandoning a service does not mean throwing away the money paid to subscribe to it. It is thus friendlier to newcomers, and less favourable to incumbents, than a subscription-based model. (Just think of the number of new media sources that developed online in the last 15 years ― and compare it with, say, the number of new newspapers that appeared in the previous decades.)

The tracked, surveilled ad-based web has its downsides. But it lowered barriers to entry and allowed the emergence of new voices which, I strongly suspect, could not have been heard without it. (By way of anecdote, I had enough doubt about this blogging thing to begin with that I’m pretty sure I wouldn’t have started if I had to pay for it too. Alternatively, I don’t suppose anyone reading this now would have been willing to pay me!) If embracing ads was indeed the internet’s original sin, then I believe that it was, as Augustine suggested of the original original one, felix peccatum ― a fortunate one.