Voice after Exit, European Edition

I wrote last year about a court challenge by two Canadian citizens living in the United States to a  provision of the Canada Elections Act, S.C. 2000 c. 9 (CEA), which prohibits Canadians who have resided abroad for more than five consecutive years (except members of the Canadian forces, civil servants, diplomats, and employees of international organization) from voting in federal elections. (The applicants or their lawyers have set up a website documenting their case, on which they have made available their application, affidavits, and exhibits ― which I think is a very commendable thing to do in a public interest case like this; a more general website advocating voting rights for Canadians abroad is here.)

In Charter cases such as this, courts often refer to the law of other countries, particularly when deciding whether a limitation of Charter rights is “demonstrably justifiable in a free and democratic society” and so constitutional pursuant to s. 1 of the Charter. So a recent decision of the European Court of Human Rights on this issue is worth commenting on.

The Court was faced with a challenge by Harry Shindler, a British citizen resident in Italy to legislation disenfranchising citizens who have lived abroad for more than 15 years. Whatever the situation of expatriates might have been in the past, Mr. Shindler argued, it is now easy for citizens living abroad to remain in contact with and engaged with the affairs of their home country. In his own case, he receives a pension from the U.K., pays taxes there, and is an active member of a number of British organizations. And he remains, of course, entitled to return to the U.K. at any time. The U.K. government, however, claimed that the ties between an expat and his home country wither over time, and that the small number of British citizens who register to vote overseas supports this contention. Although some citizens retain strong ties with their home country, it would be impracticable to premise the right to vote on each person’s engagement; a one-size-fits-all rule is necessary.

The Court found that, under the European Convention on Human Rights, the right to vote could be limited to further “any aim which is compatible with the principle of the rule of law and with the general objectives of the Convention” (par. 101). It also referred to its prior case law, in which it held that limiting expatriates’ voting rights was permissible. That is because

 first, the presumption that non-resident citizens were less directly or less continually concerned with their country’s day-to-day problems and had less knowledge of them; second, the fact that non-resident citizens had less influence on the selection of candidates or on the formulation of their electoral programmes; third, the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; and fourth, the legitimate concern the legislature might have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country (par. 105).

The court takes note of the social and technological changes that have made it easier for expatriates to retain their ties to their home countries. It also observes that various European bodies concerned with democratic rights have not (yet) concluded that countries were required to grant expatriates an unrestricted right to vote, although agreement that this was a good idea seemed to be emerging. And it holds, in somewhat conclusory fashion, that the disenfranchisement of expatriates after 15 years, “which is not an unsubstantial period of time” (par. 116), is not disproportionate to the government’s objective of ensuring that only those citizens with a sufficiently close connection to the U.K. be able to vote. An individualized assessment of a citizen’s ties to his home country would be too much of a burden to impose on the state.

I do not find this decision persuasive. The whole idea of expatriates otherwise lacking interest in the affairs of their home country suddenly showing up to vote strikes me as quite fanciful. The fact that few British citizens abroad register to vote may or may not suggest that most expatriates do not care, but it certainly suggests that those who do not care will not bother with voting. It is only the committed (few) who will take the trouble. The alleged objective of the disenfranchisement of expatriates is, in my view, nothing more than a post hoc dressing up of an old prejudice, no longer warranted if it ever was. One could also argue that the distinction between residents and expatriates based on their assumed level of knowledge about politics is also likely to be illusory, or at least rather less significant than usually assumed, because of the serious problems of political ignorance that affect the democratic process of every country (which Ilya Somin frequently discusses on the Volokh Conspiracy). So while it is true that an individualized assessment of engagement as a qualification for voting would be very burdensome and perhaps impossible to administer objectively and impartially (though prof. Somin has argued for similar assessments of political knowledge as a condition for extending the franchise to minors), this is really beside the point. There is simply no good reason for the law to distinguish between resident citizens and expatriates, regardless of how that distinction might be implemented.

Before concluding, I want to mention one feature of the decision of the European Court of Human Rights that I find puzzling: the attention devoted to the right, or lack thereof, of people disenfranchised by their country of nationality for residing abroad to vote in elections in their country of residence. It seems to me that the right to vote does not attach only to a person, so that everyone ought to be able to vote somewhere―anywhere―but, so long as one is able to vote somewhere, there is no problem with denying him the vote elsewhere. A right to vote is a right to participate in the political life of a specific community. Being granted permission to participate in the life of another community cannot remedy one’s exclusion from that to which one always belonged (nor does denial of such a permission make the exclusion any worse).

However that may be, I retain the view that I expressed in my original post on this topic:

[T]he denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners [whose disenfranchisement the Supreme Court held to be unconstitutional in  Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519], it is a judgment that they are not morally worthy to vote – and such judgments are not open to Parliament, according to Sauvé.

Personality Issues

First of all, my apologies for the extended silence. At first, it was a lack of interesting topics; but then the worst enemy of blogging, the loss of habit of frequent writing. I will do my best to get back into it now.

I start off by a comment on an interesting recent article by my NYU professor, former National Legal Director of the ACLU, and sometime movie start, Burt Neuborne. In “Of ‘Singles’ without Baseball: Corporations as Frozen Relational Moments,” prof. Neuborne grapples with an issue that has aroused a great of controversy of late: the legal personality and constitutional rights of corporations. (I have a couple of posts on this topic here and here.)

In a nutshell, prof. Neuborne argues that corporate legal personality is a legal fiction, which is very useful for protecting and enforcing the rights of the corporation’s “participants”―mostly, but not only, shareholders. Accordingly, this notional personality can be endowed with constitutional rights insofar as doing so protects the rights of the corporation’s participants. For example, courts rightly recognize that corporations have a right to property, because this recognition protects the property rights of its shareholders; they rightly recognize the corporations’ freedom of speech when that freedom is exercised to communicate about the corporations’ business, because this protects the shareholders’ ability to pursue their legitimate commercial interests; and so on. On the other hand, courts have traditionally refused, and ought to refuse, to recognize corporate rights when doing so would favour some “participants” in a corporation at the expense of others. Thus, conferring on a corporation constitutional protection against self-incrimination would favour managers by allowing them to cover up their misdeeds, to the shareholders’ detriment. And, crucially, allowing a multi-shareholder corporation to spend money to intervene in electoral politics:

Unlike the garden-variety decisions about how to manage the corporate business …  no participant in the corporate enterprise believes that by joining a corporate community he or she has delegated the exercise of his or her First Amendment electoral rights to corporate management. Given the inevitable conflicts of interest within a large multi-shareholder corporate community about which candidate to support in a contested election, it appears inconsistent with [the usual legal principles] to vest a corporate management with a centralized power to use other peoples’ money for political ends.

Thus broad readings of the U.S. Supreme Court’s Citizens United decision, which, controversially, declared unconstitutional restrictions on the ability of corporations to spend money to support or oppose candidates in elections, are misguided. 

This is an elegant argument, much more fine-grained and plausible, and thus interesting, than the categorical rejection of corporate legal personality and constitutional rights which have become popular in some quarters on the left in reaction to Citizens United. But I find it problematic in its own way. For one thing, I wonder whether it makes sense to make the answer to the question whether a corporation has a certain free speech right dependent on its internal structure. For another, I think that prof. Neuborne mischaracterizes the relationship between the rights of the “participants” in a corporation and the corporation itself, at least in the case of electoral speech. Most broadly, I think there is reason to question his rejection of the possibility of meaningfully distinct corporate personality and rights.

First, prof. Neuborne’s theory makes the existence of corporate rights dependent on their potential for advancing or hindering the interests of corporate “participants”―rights should be recognize when they advance the participants’ interests when they are unified, and rejected when the participants’ interests conflict and corporate rights would favour those of some participants over others. This means, as prof. Neuborne acknowledges, that corporations owned by a single shareholder, or presumably by a small group of like-minded shareholders, should have more rights than those owned by large numbers of shareholders who might have diverse opinions and interests. A public corporation whose shares are widely held would not have the right to spend on supporting candidates for an election―but the same corporation, if it bought out and taken private, would presumably have that right in the next election, as there is no longer a possibility for conflict among its shareholders. This strikes me as implausible. Rights, we generally think, are universal, if they exist at all.

Second, I don’t think that recognizing corporate speech rights, including the right to intervene in electoral politics, amounts to “delegat[ing] the exercise” of these rights from the shareholders and other corporate “participants” to management. Shareholders remain free to exercise these rights on their own, independently from and contrary to the corporation. One doesn’t have a limited supply of free speech rights, some of which one hands over to corporate management, so one’s rights are not actually impeded by corporate speech, even if one disagrees with it. Of course, one might be upset about one’s investment serving to promote ideas one disagrees with, but one might be similarly upset about business decisions a corporation of which one owns shares makes. Prof. Neuborne is right that there is a certain price to pay for extricating oneself from a relationship with a corporation―but that is the risk one takes by buying shares. 

Finally, I am not sure that prof. Neuborne is right to argue that corporate personality and rights can exist only insofar as they promote the easily ascertainable interests and uphold the rights of corporate “participants.” I accept that a corporation only serves to advance the interests of its shareholders (note that prof. Neuborne speaks of “participants,” not only shareholders―it is a disagreement I do not want to get into here). But we treat other artificial entities―notably governments of all sorts―as having an existence and rights of their own, even though they also exist in order to serve the interests and/or protect the rights of individuals. I’m not persuaded that the position of corporations is very different.

The Ghost of Patriation

If the ghost of communism is, or ever was, haunting Europe, Canadian constitutional law is haunted by what Fabien Gélinas described as the Ghost of Patriation. This ghost has been seen abroad again this week, stirred by an historian’s claims that, while the Supreme Court was considering questions about the constitutionality of the federal government’s proposed plan to seek Patriation without support from the provinces, the Court’s Chief Justice, Bora Laskin, leaked inside information about the Court’s deliberations to the government. The historian, Frédéric Bastien, apparently claims that this was an egregious violation of the separation of powers and that it made Patriation tantamount to a coup d’État and the resulting constitution illegitimate. Québec’s separatist government has seized on the claims, and even the Supreme Court has launched an internal inquiry, as the Globe reports.

Cooler heads are trying to put the ghost to rest by pointing out that, even if true, Dr. Bastien’s allegations are not enough to make out his claims about a coup d’État and the illegitimacy of the constitution. So Yves Boisvert argues in La Presse that while a breach of the secret of the Supreme Court’s deliberations, had it become known, might have been a cause for the Chief Justice’s resignation, it was not “a ploy that changed the course of history” (my translation). He points out that Justice Laskin found himself dissenting on the crucial question in the Court’s decision, usually referred to as the Patriation Reference, whether constitutional conventions prevented the federal government from acting unilaterally to amend the constitution. Indeed, Mr. Boisvert observes that whatever information Chief Justice Laskin might have given the government may well have been erroneous. Mr. Boisvert’s colleague, André Pratte, makes similar points in his editorial.

Messrs. Boisvert and Pratte are right. The coup d’État theory simply ignores the fact that by stating, in the Patriation Reference, that the federal government’s project was unconstitutional, albeit “only” in a conventional rather than a strictly legal sense, the Supreme Court thwarted unilateral Patriation. The Court’s majority, led by Justice Jean Beetz, held that constitutional conventions required “substantial” provincial support for constitutional amendments, which forced the federal government to negotiate with the provinces. Nine provinces eventually agreed on a (revised) Patriation plan, and the Supreme Court unanimously confirmed, in the “Québec Veto Reference,” that this was enough. The process of Patriation was constitutional in both the legal and the conventional sense.

Indeed, in my view Messrs. Boisvert and Pratte are wrong to concede, as both do, that Chief Justice Laskin’s actions amounted, or at least can be regarded as amounting, to a violation of the separation of powers. Separation of powers is an elusive concept, even by the low standards of constitutional theory, but if it has a core, it is something like the idea that political decisions of different sorts ought to be made by different institutions, whether because dividing political power in this way limits potential for abuse and tyranny, or because different institutions have peculiar strengths and good government requires decisions to be made by that institution which is most apt to handle each specific question. A pithy summary of the idea of separated decision-making is James Madison’s well-known phrase, in The Federalist No. 51, that each branch of government “should have a will of its own.” The actions of Chief Justice Laskin, even if they were as Dr. Bastien alleges, simply did not undermine the separation between the executive and the judiciary so understood. Even if he passed some information about the Supreme Court’s deliberations to the government, he did not involve the executive in the Court’s decision-making. He neither asked the Prime Minister how to rule nor took orders from him, even for himself, let alone his colleagues who disagreed with him. The ruling on the Patriation Reference was always in the Court’s hands, and the Chief Justice’s indiscretions did not change anything to that. Indiscretions, breaches of judicial ethics they were, if the allegations are confirmed. But not every breach of judicial ethics, however regrettable, is a violation of fundamental constitutional principle.

Patriation is bound to remain a murky and controversial episode of our history. As the men involved in it die, the first-hand memory of events fades. Perhaps we will never know the exact truth about what happened. On the other hand, the fading of the first-hand memories of the bitter divisions of those days should be an opportunity to leave behind the passions that reigned then. In order to do that, we would do well to leave the ghost of Patriation alone. He has haunted us enough, and earned his peace.

Dirty Laundry

Can the state enlist lawyers to help it crack down on money laundering in which their clients might be involved? This was the question addressed by the B.C. Court of Appeal in Federation of Law Societies of Canada v. Canada (Attorney General), 2013 BCCA 147, an important judgment delivered last week. Elevating the independence of the bar to a constitutionally enshrined principle of fundamental justice, the Court held that only law societies, not the government, could force lawyers to keep and eventually to hand over records of financial transactions.

The legislation at issue required lawyers and law firms, as well as other professionals, when acting as financial intermediaries for their clients, to keep records of transactions, and made it possible for the federal agency responsible for preventing and combating money laundering to access the lawyers’ offices and computers without a warrant in order to review the documents kept there, subject to the lawyers’ ability to challenge request for the documents covered by the solicitor-client privilege. The information obtained from the lawyers could then be transmitted, on certain conditions, to law enforcement.

The Federation of Law Societies of Canada (FLSC), which consists of the 13 provincial and territorial bars and Québec’s Chambre des Notaires, challenged its constitutionality as applied to legal professionals. They succeeded at first instance on the basis that the legislation authorized violations of the solicitor-client privilege, which Canadian courts had already recognized as a constitutionally protected principle of fundamental justice. The Court of Appeal, however, rested its judgment on a broader foundation: the independence of the bar, which it held was also a principle of fundamental justice protected by s. 7 of the Charter.

One preliminary issue that the court had to address was the factual foundation of the Charter challenge. No lawyer had actually been accused under the impugned legislation; the attack on it was entirely preventive. The Court held that this did not matter, pointing to the voluminous record of social science evidence about the purpose of the legislation at issue that was before the judge of first instance. Another concerned the interpretation of the legislation―the government argued that it did not go so far as the FLSC contended, but the Court rejected that submission. Yet another preliminary issue was whether the liberty interests of clients, as well as lawyers, were engaged. The Court split on this point, the majority holding that they were because information collected by or seized from lawyers could serve in the prosecution, and eventual imprisonment, of clients, while the concurrence found the connection too remote to be significant.

On the main question, whether the potential deprivation of liberty of lawyers under the legislation was in accordance with the principles of fundamental justice, as required by the Charter, the Court was unanimous. It held that, although this was not yet at “settled” matter, “the independence of the Bar” is a principle of fundamental justice.  Pointing to a number of judicial decisions recognizing the value of an independent Bar, the Court concluded that it “has long been recognized as a fundamental feature of a free and democratic society” (par. 107) and an element of the Rule of Law (par. 111). It further held that the independence of the Bar was a sufficiently precise standard against which to assess legislation: “the independence of the Bar consists of lawyers who are free from incursions from any source, including from public authorities” (par. 113). Because the anti-money-laundering legislation “will turn at least some lawyers into agents of the state” (par. 124) for the purpose of collecting information about their clients, it infringes the independence of the Bar and thus s. 7 of the Charter.

The final issue for the Court was whether this infringement could be justified under s. 1 of the Charter. In most s. 7 cases, analysis on this point is almost perfunctory; it is difficult to imagine how an infringement of “principles of fundamental justice” could ever be “demonstrably justified in a free and democratic society.” Here, unusually, the s. 1 analysis was actually longer than that on s. 7, but the conclusion was still the expected one. The Court held that there existed an effective alternative to government regulation infringing on the independence of the Bar: regulation by law societies. The fact that the government appeared to accept the idea of outsourcing some control functions to the law societies only supported this conclusion. Since there existed a constitutional alternative to the government’s chosen regulatory approach, it was not minimally impairing of the rights at stake, and thus not justified under s. 1 of the Charter.

Although the Court’s reasoning seems like a logical extension of the cases which it cites, I find the decision disturbing.

First, as for example with the Québec Bar’s challenge to the constitutionality of the federal government’s “tough on crime” legislation (about which I wrote here), I am uneasy at constitutional challenges that divorced from specific factual situations and involve only “legislative,” contextual facts. It seems to me that such cases call into question the specifically judicial nature of judicial review of legislation; they make courts into legislative rather than judicial bodies.

Second, and perhaps more importantly, I am also very uneasy at the idea of constitutionalizing the “independence of the Bar.” It is true that the existence of lawyers willing to take on unpopular cases, including cases opposing citizens to the government, is important to the preservation of freedom and of the Rule of Law. But is it necessary, to grant constitutional protection to the law societies―legally sanctioned cartels which exist for the purpose of propping up the income of their members, whatever their rhetoric about access to justice which the higher prices they impose impede? Could this constitutional status be used to challenge an eventual law (unlikely, alas) liberalizing the market for legal services and reducing or even eliminating the Bar’s monopoly? It would be a sad outcome if debates about such legislation were prevented by the collusion of the Bar and the judiciary. Finally, I would note that the judiciary accepts, as a necessary corollary of its independence, a duty of reserve―the idea that judges must be politically neutral and indeed abstain from commenting on most issues of public concern (except arguably those that have to do with the organization of and access to courts). Is the Bar prepared to pay the same price for its independence? The activism of Québec’s Bar certainly suggests that it is not. And, while I think that the Québec Bar’s transformation into a public interest litigation outfit akin to the Canadian Civil Liberties Association is a bad idea, I don’t think that lawyers ought to be as neutral as judges. But then they should not try to have their cake and eat it too.

The BC Court of Appeal does not think so, it would seem, though I wonder to what extent it actually thought through these questions. For the Court, lawyers are constitutionally entitled to do their own dirty laundry.

Faith and Acts

Is it permissible for an undercover police officer to pose as a religious adviser to induce a suspect to disclose information about a crime the officer is investigating? Not always, but sometimes it is, says the Court of Appeal for Ontario in a decision released last week, R. v. Welsh, 2013 ONCA 190.

In that case, the investigation of a brutal murder involved a police officer posing as an “Obeahman,” the practitioner of Obeah, a system of beliefs that “centres on mysticism and spiritualism and is commonly practiced throughout the Caribbean and by those of Caribbean descent, including many Caribbean Canadians. It … defines the characteristics of the supernatural world and its relationship to humankind” (par. 26). In particular, “Obeah is used as a bridge between the natural and the spirit worlds, and part of the work of an Obeah practitioner is to try to protect supplicants who believe that an evil spirit is targeting them” (par. 27).

Using props, ploys, and subterfuge, the pretended Obeahman managed to persuade the suspects of his investigation that he would be able to protect them from problems with the police and the criminal justice system, which the murder victim’s spirit would otherwise create. But, he told them, in order to do this he needed to know how that spirit came to be―and so incited them to disclose information about the murder which eventually proved significant in securing their convictions.

Before the trial, the accused moved to suppress the false Obeahman testimony. They argued that they freedom of religion and equality rights had been infringed, that the statements they made to the man who they believed was an Obeahman were privileged at common law, and that their collection was a “dirty trick” which, if permitted, would bring the administration of justice into disrepute. The trial judge rejected these submissions, and they were among the grounds of appeal (the only one which I discuss here).

On the issue of the violation of freedom of religion, after some discussion of whether the appellants were actually sincere believers in Obeah (one of them was not, but another was), the Court held that the conduct of the police did not amount to an infringement of religious liberty. Although the undercover officer encouraged the appellants in their beliefs, he did not compel them (nor did he have any power to do so). Nor did he in any way prevent them from acting on any religious beliefs. Perhaps most importantly,

there is no evidence that either appellant communicated with [the pretended Obeahman] Leon to satisfy or fulfill some spiritual need or purpose. This situation is distinguishable from the hypothetical of a police officer posing as a priest and pretending to take a religiously motivated confession from a suspect. In that case, the communication would be religiously motivated and made to satisfy a spiritual need or purpose. … [T]he lack of a formal practice of confession in Obeah is not determinative … The focus is not on formal distinctions of that kind but rather on whether a religious purpose motivates the communication. The situation of a suspect who thinks he is speaking to a religious or spiritual figure for spiritual counselling or guidance is very different from that of a suspect who seeks assistance in thwarting the authorities. (Par. 70)

The Court made short work of the appellants’ equality argument, holding that they had been targeted because they were suspects in a criminal investigation, not because of their race or unusual religious beliefs. Although there was evidence that some of the police officers involved in the investigation did not regard Obeah as a genuine religion, their views were not material, since the trial judge’s decision was not founded on them (and indeed rejected them).

The Court also rejected the appellants’ claim that their communications with the Obeahman attracted common law privilege (in the way a confession to a priest would). Whether or not they had an expectation that these communications would remain confidential, the crucial fact is that their purpose was not to seek pastoral guidance but to obtain help in evading justice. Such communications deserve no protection from society and are not privileged.

Finally, the Court denied that the conduct of the police fell into the category of “dirty tricks” that bring the administration of justice into disrepute. Justice Lamer (as he then was), who first articulated this idea in a concurring opinion in Rothman v. R., [1981] 1 S.C.R. 640, suggested “a police officer pretend[ing] to be a lock-up chaplain and hear[ing] a suspect’s confession is conduct that shocks the community,” (p. 697) making the resulting evidence inadmissible. But despite the superficial similarity, this case is not identical to that scenario. Once again, the purpose of the appellants’ interaction with the alleged Obeahman is crucial:

 Unlike the priest-penitent example, and quite apart from any distinction drawn on formal differences between the confessional and merely confiding in a religious adviser, the appellants did not communicate with [the Obeahman] to fulfill a religious purpose or spiritual need. They were induced to make incriminating statements to [the Obeahman] in the hope that he would use his powers to thwart the police and the justice system and to allow them to escape prosecution for a serious crime.

I think this is a sensible decision. Religious freedom always worries not only its detractors but even its defenders because it seems to involve an idea that those who claim it as justification for their actions seek to become “a law unto themselves,” and not be bound by the law of the state, which applies to their fellow citizens. These fears are not infrequently overblown, but here, the appellants quite clearly sought to invoke their faith to shield them from the consequences of perfectly secular, and utterly reprehensible, acts. No theory of religious freedom will let a believer get away with murder.

Happy Birthday, Double Aspect!

My blog is a year old! (A year and a day actually.) As I wrote in my 100th post, “[o]n the whole, I would rate this blogging adventure as a time-consuming success.” Despite occasional periods of delinquency, I’ve produced just over 200 posts during that time. If I worked on my dissertation at this pace, I’d be done already. Of course I don’t, because it’s not nearly as much fun.

And a big part of the fun, of course, are you, the readers. It’s nice to know that one is read, and read by all sorts of people―not only fellow academics (not that I have anything against my readers who are!), but also people who actually practice law, and those who are not lawyers at all.

Another part of the fun has been organizing my thoughts, and exploring topics I would probably not have ventured into but for the blogging (in particular, the interaction of law and technological change). No papers have yet come out of the blog, but I have plans for two or three. (It’s easy to have plans of course…) If any of them materializes, there will be a more tangible benefit to show for all the time spent here, but that wasn’t, and isn’t, the main purpose.

I suppose it would be de rigueur to talk about plans for the next year here, but I hardly have any. I will do my best to keep at least my current pace, and will try to make sure that the second year is no worse than the first. If you’ve enjoyed it so far, please keep coming back, and tell your friends!

L’Occasion de se taire

J’ai écrit, l’an dernier, que le Directeur Général des Élections du Québec

envisage[ait] … de poursuivre Yves Michaud pour avoir fait publier dans le Devoir une publicité appelant les électeurs à défaire certains députés, de tous les principaux partis. Il leur en veut d’avoir voté, il y a douze ans, en faveur d’une motion de blâme à son endroit après qu’il eut fait une déclaration que tous les membres de l’Assemblée nationale avaient jugée antisémite. Or, l’article 413 de la Loi électorale interdit à quiconque n’est pas un agent officiel d’un candidat ou d’un parti d’engager, durant la campagne électorale, des dépenses visant à favoriser ou à défavoriser l’élection d’un candidat.

Selon ce rapporte La Presse, c’est maintenant chose faite. Le DGE réclame une amende de 5000$ contre M. Michaud, ainsi que des frais de quelque 1200$. M. Michaud, pour sa part, prévoit plaider non-coupable et prépare à son tour une poursuite (civile) contre le DGE pour « atteinte à la liberté d’expression et à l’honneur d’un citoyen ». Je vois mal, à vrai dire, comment cette demande pourrait réussir (ne serait-ce que parce que, si M. Michaud prévaut dans la cause pénale, il n’y aura pas eu d’atteinte à sa liberté d’expression, alors que s’il la perd, l’atteinte sera manifestement justifiée par la loi). Par contre, les dispositions qu’il est accusé d’avoir violées sont, selon moi, inconstitutionnelles.

Comme je l’écrivais dans mon premier billet sur le sujet, on n’est pas obligé d’aimer M. Michaud, mais ce n’est pas une raison pour le museler:

M. Michaud n’est certes pas très sympathique. Mais … là n’est pas la question. Si peu sympathique soit-il, est-il juste de lui interdire de s’exprimer en période électorale? Il est vrai, il a le droit de faire publier une lettre ouverte, ou encore de s’exprimer sur internet, à condition, dans les deux cas, de ne pas payer pour la transmission de son message. Mais internet, ce n’est pas encore pour tout le monde. Quant à publier une lettre ouverte, une homme odieux, ou un homme qui poursuit une vendetta essentiellement personnelle – et a fortiori celui qui, comme M. Michaud, est les deux – risque de ne pas s’attirer la sympathie d’une rédaction qui, après tout, dispose d’un espace limité pour publier le courrier des lecteurs.

Une opinion impopulaire peut être difficile à exprimer. Mais – c’est la beauté du système capitaliste – une opinion qu’un journal ne veut pas propager à ses frais peut quand même être diffusée, à titre de publicité payante. M. Michaud était donc prêt à payer pour faire diffuser son opinion impopulaire. Mais bien sûr, cette opinion, c’est que certains députés sont, selon les termes de sa publicité, « indignes d’être élus », il voulait la diffuser, justement, en période électorale. Ce que la loi lui interdit.

Quel est donc l’effet de cette interdiction dans ces circonstances? Ce n’est pas, je soupçonne, d’empêcher la richesse de subvertir le processus démocratique. La publicité a dû coûter quelques milliers de dollars à peine, elle étai dirigée contre des candidats des trois  principaux partis, elle ne visait ni à protéger les riches d’une redistribution de la richesse ni à s’attirer les faveurs du prochain gouvernement. C’est, plutôt, d’empêcher la diffusion d’un message qui est, à la fois, impopulaire et inextricablement lié à une élection. C’est de faire en sorte qu’un citoyen qui se sent attaqué par une décision des législateurs n’est pas libre de leur répliquer sur la place publique au moment où les autres citoyens, et donc les législateurs, sont les plus susceptibles de l’écouter.

Dans Libman c. Québec (Procureur général), [1997] 3 R.C.S. 569, la Cour suprême a invalidé la législation Québécoise qui empêchait les citoyens de payer pour s’exprimer dans le cadre de campagnes référendaires et électorales, mais a suggéré  que les dépenses engagées dans de telles circonstances pouvaient être limitées. Tant le Parlement que l’Assemblée nationale ont répondu à cette décision en adoptant des lois qui limitent les dépenses que peut engager un« tiers » ― c’est-à-dire quiconque n’est pas un candidat ou un parti politique―dans le cadre d’une campagne électorale. La limite fédérale est de 3 000$ dans une circonscription ou de 150 000$ à l’échelle nationale. Elle a été reconnue constitutionnelle par la Cour suprême dans  Harper c. Canada (Procureur général), [2004] 1 R.C.S. 827, 2004 CSC 33.

Or, la loi québécoise est beaucoup, beaucoup plus contraignante. D’abord, l’alinéa 13 de l’article 404 de la Loi électorale, L.R.Q. c. E-3.3, limite les dépenses « des intervenants particuliers » à la somme tout à fait risible de 300$. Ensuite, et surtout, la même disposition leur interdit de « favoriser [ou] défavoriser directement un candidat ou un parti ». Finalement, l’article 457.2 de la même loi dispose qu’une personne morale ― une corporation donc, mais aussi un syndicat ou une ONG organisée comme corporation, même à but non-lucratif ― ne peut devenir un « intervenant particulier ».

Selon moi, il s’agit de différences très considérables. Si considérables que, même en acceptant que la décision dans Harper était la bonne, les limites imposées par la Loi électorale sont inconstitutionnelles. La Cour d’appel du Québec a rejeté des arguments de la FTQ à cet effet, dans Métallurgistes unis d’Amérique, section locale 7649 (FTQ) c. Québec (Directeur général des élections), 2011 QCCA 1043. Malgré mon très grand respect pour la juge Duval-Hesler (tel était alors son titre), l’auteure de cette décision, pour qui j’ai eu l’honneur (et le plaisir) de travailler un peu, je pense qu’il s’agit d’une erreur. La Cour suprême ne s’est pas prononcée sur la question. J’espère que la cause de M. Michaud lui donnera l’occasion de le faire. Le législateur québécois estime que, pour les citoyens, une campagne électorale est une occasion de se taire. Dans un pays démocratique, c’est une idée intolérable.