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.

Questionable Limits

Jim Prentice, the leader of Alberta’s Progressive Conservative Party (and would-be Premier), has proposed limiting the time provincial politicians can serve in office. Members of the legislature would be limited to three terms; the premier to (an additional?) three. The wisdom of this proposal has been much criticized. (Aaron Wherry, of Maclean’s, a critic himself, has links in this article.) Its constitutionality is also questionable.

As the thoughtful MP Brent Rathgeber points out in a blog post, section 3 of the Charter protects every citizen’s right to stand for election to a legislature; and “[n]otice,” he adds, “it says ‘every citizen of Canada’ not every citizen ‘who has not already completed three terms in the legislative assembly.'” The unconstitutionality of legislative term limits might not be so free from doubt as Mr. Rathgeber makes it out to be, since an infringement of s. 3 of the Charter can, in theory, still be justified under s. 1. (Eric Adams argues  that this one could not be, but without much of an explanation.) I might come back to this in a later post.

For now, however, I want to focus on another point Mr. Rathgeber makes, which is that

[p]roposed term limits for serving as the premier, however, are trickier, at least constitutionally. Section 3 provides only constitutional protection for seeking a seat in the assembly, not for being asked to serve in the executive. As our premier is chosen by the Lieutenant Governor to serve, provided he has the confidence of the elected assembly, I suspect term limits for premiers, similar to those imposed on US Presidents and some Governors, may very well survive a Charter challenge.

That may indeed be so, although again the matter is not so clear, because the voters’ s. 3 right to “effective political participation” might have to be considered in a Charter analysis of executive term limits. (On the other hand, formally at least, it is not the voters who choose members of the executive, so it’s not clear that this argument can go very far.) But be that as it may, there is another argument against the constitutionality of executive terms, which may not involve the Charter at all.

Rather, the constitutional issue with executive term limits is that appointing a Premier is a power of “the office of … the Lieutenant Governor of a province,” which par. 41(a) of the Constitution Act, 1982 protects from amendment except by the unanimous consent of the provinces and Parliament. Appointing the Premier is one of the very few things, if not the only thing, that the Lieutenant-Governor does on his own, without taking anyone’s advice. Of course, convention dictates the way in which he exercises this power (he must appoint the person most likely to obtain the confidence of the legislature ― which usually, but not necessarily, means the leader of the largest party in the legislature). But the power is the Lieutenant-Governor’s all the same, and sometimes (notably, after the election of a legislature in which no party has a majority) he may have to use his own judgment in exercising it. A statute that provides that a person cannot serve as Premier is a limit on the Lieutenant-Governor’s ability to exercise this power, and thus, logically, a modification of his “office.”

It is useful to recall here something that Lord Sankey said in the famous “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124. It is not true, says the great constitutional horticulturalist, that

their Lordships [are] deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one, either male or female, has a right to be summoned to the Senate. The real point at issue is whether the Governor General has a right to summon women to the Senate.

In the context of that case, it sounds implausible (I have myself said that “His Lordship, one is rather tempted to think, protests too much”) but, legally, that’s quite right. And, just as no one has a right to be summoned to the Senate, but the Governor General ― or, by convention, the Prime Minister ― has (so the Privy Council concluded in Edwards) the right to summon women to the Senate, so while no one has a (Charter) right to be asked by the Lieutenant-Governor to serve as a Premier, the Lieutenant-Governor has a right to ask the person of his choice to serve as Premier.

The legislation imposing term limits could, however, be designed to operate in a way that would attempt to circumvent this constitutional prohibition. Instead of directly prohibiting a person from serving as Premier for a third term, it would have to prohibit political parties from having a two-term Premier as a leader. One could then argue that the Lieutenant-Governor’s choice is not impaired by that statute, but rather by the convention that requires him to appoint a party leader as Premier. Whether this argument would be accepted by courts is not clear, however.

If they stick to an orthodox understanding of the law, which excludes constitutional conventions and thus acknowledges no limits on the Lieutenant-Governor’s powers, they might see such a law as an attempt to do indirectly what cannot be done directly, and invalidate it on that basis. If however, they take something like the approach Fabien Gélinas and I have suggested in our paper on Senate reform, on which the office of the Lieutenant-Governor (as well as any other term in the constitutional text) must be understood with reference to conventions, they should probably accept that this approach does not actually limit the Lieutenant-Governor’s powers, since conventions already limit them to choosing among the leaders of the parties in the legislature, and give him no say in who those leaders are. Unfortunately, despite having the opportunity to do so in Reference re Senate Reform, 2014 SCC 32, the Supreme Court has not really made it clear which of these approaches is correct. Instead, it relied on an obscure notion of “constitutional architecture” which in my view may well include some, but perhaps not all, conventions. Do executive term limits interfere with the “constitutional architecture” as it relates to “the office of the Lieutenant-Governor”? Your guess is as good as mine.

However, even if a law imposing executive term limits by prohibiting parties from having long-term premiers as leaders could survive a challenge based on par. 41(a) of the Constitution Act, 1982, it would probably be an infringement with the parties’ rights under s. 3 of the Charter. An individual may have no constitutional right to serve in the executive, but a party is free to decide how many candidates to present (so the Supreme Court held in Figueroa v. Canada (Attorney-General), 2003 SCC 37, [2003] 1 SCR 912), it arguably also has the right to decide what candidates to present, and which of them to make its leader. Again, a s. 1 justification would theoretically be possible, but it would not be easy.

The constitutionality of executive term limits thus is, at best, highly questionable. But it would be better for all if it were never tested in court. As others have amply shown, term limits are a bad idea, and even if I am wrong and they constitutional, there is no point in trying to impose them. About that, there is no question at all in my mind.

Challenging Succession, Round 2

Yesterday, in Teskey v. Canada (Attorney General), 2014 ONCA 612, the Court of Appeal for Ontario rejected a Charter challenge to the Succession to the Throne Act, 2013, a law that purports to “assent[] to” the changes to the rules of royal succession laid out in a British bill (and agreed to by the heads of government of the Commonwealth). This decision upholds the one issued by the Superior Court of Justice last year, about which I wrote here. In my view, like that decision, that of the Court of Appeal may well reach the correct outcome, although its reasoning is deeply flawed. And to the extent that it is correct, it only strengthens a different challenge to the Succession to the Throne Act.

The appellant, who represented himself (as he had done at first instance), argued that the continued exclusion of Catholics from the line of succession, which the Succession to Throne Act does nothing to address, infringes the equality rights guaranteed by the Charter. But, like the Superior Court, the Court of Appeal concludes that the case

does not raise justiciable issues and that Mr. Teskey lack[s] standing to bring the application. The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter, and Mr. Teskey does not have any personal interest in the issue raised (other than being a member of the Roman Catholic faith) and does not meet the test for public interest standing.

I agree with the Court on the matter of standing. Even under the relaxed public interest standing test, a claimant’s capacity to develop his argument in a manner that will be helpful to the court is a relevant consideration, and it’s not clear that Mr. Teskey had such a capacity; nor is it clear, as the Court says, what his interest in the issue is.

However, there are several problems with the Court’s reasoning. One is that, assuming that the Succession to the Throne Act is not subject to the Charter because succession rules “are incorporated into [the Constitution] and therefore cannot be trumped” by it, this is not a matter of “justiciability.” As I explain in my post on the decision at first instance,

[j]usticiability is a slippery concept, but it has to do with a court’s ability to answer the sort of question at issue in a case. The question here is the constitutionality of an Act of Parliament ― something the courts deal with all the time. Even if the Charter does not apply to that Act of Parliament, that does not mean that its constitutionality could not be called into question in a judicial proceeding, albeit on a different basis.

An issue that does go to justiciability, at least in a broad sense, is whether the Court can address a constitutional challenge to a statute which has not even been proclaimed into force. I’m not aware of any such case, and I have serious doubts about a court’s power to entertain such a challenge ― but here, the Court of Appeal does not even raise this question.

And then, there is the matter of the grounds for the Court’s assertion that the rules of succession are a part of the Constitution. The Court doesn’t explain why this is so ― yet these rules are certainly not an explicit part of any enactment which s. 52 of the Constitution Act, 1982 lists as being part of the Constitution.

The Court’s assertion is, however, probably correct because, I wrote last year, the “office of the Queen” entrenched by par. 41(a) of the Constitution Act, 1982, “arguably includes the rules on who can come to hold that office from time to time, at least in a case where, like with the monarchy, these rules are, arguably again, its defining characteristic.” Since then, the Supreme Court has held, in L’affaire Nadon, that the “composition” of the Supreme Court (entrenched by a different paragraph of s. 41) includes the eligibility criteria for judges, a conclusion which I think suggests (although probably does not require) that the phrase “the office of the Queen” should also be interpreted to include eligibility criteria.

But if the rules of succession to the throne are indeed “a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter,” it follows that, a fortiori, they cannot be amended by an ordinary act of parliament, such as the Succession to the Throne Act. If they are part of the constitution, they must be changed by a constitutional amendment. If I am right that they are part of the constitution by virtue of par. 41(a) of the Constitution Act, 1982, this amendment requires the unanimous consent of the provinces. I take it that Mr. Teskey did not make this argument, and that the Court could therefore not consider it, but it is at the heart of a challenge launched by a group of constitutional law professors in Québec. Like the Superior Court before it, the Court of Appeal has given that challenge additional ammunition. When it is finally heard ― not before next summer, apparently ― it will become clear that, just like with its Senate reform project, and the appointment of Justice Nadon, the federal government chose to take a shortcut to avoid formal constitutional amendment ― and has ended up violating the constitution.

Shifting the Culture of Rationing

As Justice Karakatsanis observed in the opening paragraph of her reasons (for the unanimous Supreme Court) in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87  “[t]rials have become increasingly expensive and protracted.” For the Supreme Court, the length and expense of trials is an access to justice problem. But (at least some) provincial governments, notably that of British Columbia, see it primarily as a budgetary problem, in that court time is a demand on the public purse ― it requires the presence of judges, court officers and other employees, the operation of buildings, etc. Accordingly, the BC government has chosen to ration court time by requiring parties who set their cases down for trial to pay escalating “hearing fees” which increase sharply if their trials get longer. The Supreme Court is now considering constitutionality of these fees, in a case about which I have written quite extensively.

A decision of Ontario’s Superior Court of Justice, Bosworth v. Coleman, 2014 ONSC 4832, delivered last month but recently highlighted by Allan Rouben, is interesting because it might help us see some of the issues the hearing fees litigation raises from a somewhat different perspective. To borrow Mr. Rouben’s description of the case, it was

a motion to enforce an agreement between the parties to limit the length of [a] trial to ten days, in exchange for the plaintiff agreeing to cap the damages. In Toronto, trials of ten days or more are placed on a long trial list and this can result in a much longer wait time for a scheduled trial. When the defendant appointed new counsel who considered the trial would take more than fifteen days, the proper management of the trial came back before the Court.

Justice Myers’ response (paras. 12-15; emphasis in the original) is worth quoting at length:

Before me, the defendants’ counsel submitted his honestly held professional view, as an officer of the court, that the trial would take more than 10 days to complete.  While I accept this view, I reject the premise underlying it.  That is, the trial will likely take more than 10 days if it proceeds in the ordinary manner in which the civil trial bar is used to proceeding.

[I]t is no longer appropriate to rest upon the historic way of doing things.  Doing things as we have always done them has created a crisis of access to justice (or inaccessibility of justice).  The Supreme Court of Canada recognized the challenge of ensuring access to civil justice in Canada … In Hryniak … at para. 1, Karakatsanis J. said that the system as we know it is broken:

Trials have become increasingly expensive and protracted.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.  Without public adjudication of civil cases, the development of the common law is stunted.

In this case, it is not the court that has sought to improve the accessibility to justice for the parties.  Rather, the parties did so themselves [by agreeing to limit the length of their trial]. …

As submitted by [the plaintiffs' lawyer], the effect of the agreement was to take the delay, expense and distress of a long trial off the table. The issue is not whether the defendants’ counsel thinks that the trial, if conducted in a particular way, would take longer than 10 days.  Rather, the question is: can justice be achieved for the parties in a timely, affordable and efficient manner through cooperation by counsel and with assistance from the court?

In Hryniak, Justice Karakatsanis spoke of a “culture shift” that is necessary in order to make civil justice ― including the resolution of civil disputes by judges ― accessible to ordinary Canadians. Justice Myers’ opinion in Bosworth, says Mr. Rouben, is an illustration of what this culture shift will look like. It will take some effort from everybody. As Justice Myers explains (para. 21),

Improving access to the civil justice system requires all users of the system (litigants, counsel, judges and administrators) to focus on ensuring that the system provides fair and just processes short of the unaffordable, painstaking trial of yester-year.

Lawyers need to work harder, because “[i]t may take more work for counsel to prepare a short examination” than to just “raise every possible issue and ask every possible question” (para. 22). In addition (para. 23, footnote omitted),

it is very much the role of the court and the clients to promote access to justice by working with counsel to make trials shorter, run more efficiently, and thereby more affordable, timely and proportionate. For their part, judges will have to be prepared to increase their involvement and time commitment to assist the parties and counsel in case management.  This will require appropriate administrative support as was also recognized by Karakatsanis J. in Hryniak.

In short (para. 24, emphasis added),

the court should strain to assist parties with defining processes that make the civil justice system affordable and accessible for themselves as long as the result is consistent with the fair and just resolution of the dispute on the merits.

The reason I am quoting Justice Myers at such length is that his decision, even as it tends to the same end as the BC hearing fees ― a shortening of trials ― represents a very different vision of how to achieve it. Its driving concern is not convenience for the government, but access to justice for the parties. It works not by making the resolution of disputes by courts even less accessible, but by trying to reduce the inaccessibility; not by threatening the parties but by helping them. And it is more flexible than the hearing fees approach, because it recognizes that cases are not all alike, and that in some, a “fair and just resolution of the dispute” will require a lot of time despite the parties’ and the court’s best efforts. As the Supreme Court decides what to do about hearing fees, I hope that it takes note of Justice Myers’ thoughtful opinion.

I do have one concern about it though. What worries me is that the “culture shift” espoused by Justice Myers might make the already difficult position of self-represented litigants even worse. Such litigants will have an especially hard time focusing on the legally important issues and evidence. This is most obviously because they have a limited understanding of the law (both the substantive law and the law of evidence), but also because they necessarily lack the detachment between the personal story and the legal case that is, as Scott Greenfield explains in a wonderful post at his Simple Justice blog, crucial to “thinking like a lawyer” ― and to being an effective advocate. For self-represented litigants, the temptation to just throw the kitchen sink is thus especially strong. (Indeed, the case that gave rise to the BC hearing fees challenge, Vilardell v. Dunham, 2012 BCSC 748, involved a self-represented defendant. As Justice McEwan noted (paras. 19-20), it was a ten-day trial “largely a result of the thorough approach the defendant took to the case,” even though “[c]ompetent counsel might have cut the time in half, because counsel generally know how much evidence is enough.”) Steering self-represented litigants towards shorter trials thus risks imperilling their already limited ability to obtain a “fair and just resolution of the dispute on the merits.” Of course, this problem also arises, and is even worse, under the hearing fees approach. But, especially if they are going to be actively intervening in case management to shorten trials, courts need to be aware of it.

L’amour des deux citrons

J’ai déjà eu l’occasion de dénoncer les grossières exagérations et le simplisme époustouflant, le tout assaisonné d’une bonne dose d’ignorance et même de mensonge, de Frédéric Bastien, un historien qui passe ses temps libres à pourfendre le juges canadiens qu’il croit être des tyrans assoiffés de pouvoir. Il en remet dans son plus récent billet sur le Blogue Politique de L’Actualité, dénonçant le contrôle judiciaire de la constitutionnalité des lois et ce qu’il considère comme l’inconstance et l’hypocrisie du gouvernement conservateur en la matière. Ce n’est pas vraiment la peine de revenir ici sur le fond du débat concernant le contrôle judiciaire, puisque je l’ai fait à maintes reprises sur ce blogue, et que, de toute façon, M. Bastien n’y ajoute rien de nouveau ou d’intéressant. En revanche, son attitude envers Stephen Harper et son gouvernement mérite un commentaire.

Cette attitude est un mélange de dénonciation, de regret et de plaidoyer. Certes, M. Bastien en veut à M. Harper de ne pas avoir davantage cherché à s’affranchir de qu’il dénonce comme un « gouvernement des juges », notamment en invoquant la clause non-nonobstant (suite à l’arrêt Bedford, par exemple),  et plus encore d’avoir menacé d’invoquer la Charte canadienne des droits et libertés pour faire invalider la « Charte des valeurs » péquiste. Cependant, il conclut sur ce qui a l’air d’un appel :

S’ils étaient restés plus fidèles à leurs idéaux, les conservateurs auraient pu ratisser bien plus large au Québec, où l’on compte beaucoup d’électeurs opposés à la Charte, au multiculturalisme et au gouvernement des juges. Cet appui potentiel leur fera cruellement défaut lors de la prochaine élection.

Reviens, Stephen, tout est pardonné!

M. Bastien n’est pas vraiment meilleur politologue que constitutionnaliste : la campagne anti-Charte, anti-multiculturalisme et anti-juges qu’a menée le PQ pour vendre sa charte de la honte ne l’a guère aidé aux dernières élections provinciales, un fait que, comme tant d’autres, M. Bastien passe sous silence. Toutefois, il y a bien une part de vérité dans ses affirmations. Cette vérité, c’est que, si tant est que les Conservateurs ont articulé quelque chose comme une théorie constitutionnelle, celle-ci s’approche de celle articulée par certains constitutionnalistes québécois : une théorie constitutionnelle hostile au pouvoir judiciaire et, notamment, aux interventions des tribunaux pour protéger les droits individuels contre les politiques gouvernementales.

À première vue, il y a là quelque chose de profondément ironique. Comme le rapportait Sean Fine dans le Globe and Mail, les Conservateurs se sont engagés dans l’aventure ― et ils savaient que c’en était une ― qu’était la nomination du juge Nadon à la Cour suprême parce qu’ils étaient persuadés de ne pas pouvoir trouver, dans le milieu juridique québécois, un juge partageant leur philosophie. Or, c’est précisément au Québec qu’on trouve, plus qu’au Canada anglais, un courant de pensée juridique en sympathie avec les Conservateurs. Cependant, en y regardant de plus près, on se rend compte que l’ironie n’est pas une, et on constate aussi l’hypocrisie de la position de M. Bastien et de ses acolytes.

Les juristes (et les non-juristes, tels que M. Bastien) québécois qui pourfendent la Charte et le « gouvernement des juges » sont, autant que je sache, généralement sinon tous fortement nationalistes, voire séparatistes. Et s’ils sont d’accord avec M. Harper sur le sujet du pouvoir judiciaire, ils ne partagent point ses opinions sur la place du Québec dans la fédération canadienne et ses institutions ou, plus généralement, les relations entre le gouvernement fédéral et les provinces. Ceci les disqualifie sans doute comme juges potentiels aux yeux de M. Harper, peu importe les points communs qu’ils peuvent avoir avec lui.

Mais cette divergence d’opinions a aussi une autre conséquence. Sur les questions relatives au fédéralisme et à la place du Québec dans le Canada, la Cour suprême a, ces dernières années, rendu de nombreuses décisions qui coupant court à l’action unilatérale du gouvernement fédéral ― on n’a qu’à penser au Renvoi relatif à la Loi sur les valeurs mobilières, 2011 CSC 66, [2011] 3 R.C.S. 837, au Renvoi relatif à la réforme du Sénat, 2014 CSC 32 ou encore, justement, à la décision dans l’affaire Nadon, le Renvoi relatif à la Loi sur la Cour suprême, art. 5 et 6, 2014 CSC 21, [2014] 1 R.C.S. 433. En fait, ce sont ces décisions qui, plus encore que celles fondées sur la Charte, qui ont entraîné le conflit entre le gouvernement de M. Harper et les tribunaux. Or, ces décisions devraient confronter les constitutionnalistes nationalistes opposés au contrôle judiciaire de constitutionnalité des lois au fait que ce sont justement les tribunaux qui protègent le Québec (ainsi que les autres provinces) des tentatives du gouvernement fédéral de s’arroger les pouvoirs que la constitution ne lui confère pas et de diminuer le rôle des provinces (y compris du Québec) au sein de la fédération.

Il est donc intéressant de constater que M. Bastien n’a rien écrit au sujet du renvoi sur le Sénat ou de l’affaire Nadon. Pourtant, ces jugements posent de façon très aiguë la question, si chère à ce dernier, du pouvoir judiciaire. En constitutionnalisant la Loi sur la Cour suprême dans l’affaire Nadon et en inventant la notion d’ « architecture constitutionnelle », qui inclut possiblement les conventions constitutionnelles, dans le renvoi sur le Sénat, la Cour suprême a carrément ré-écrit la constitution canadienne. Quelle cible, en apparence, pour M. Bastien! Or, il demeure silencieux.

Qu’il me soit permis de croire, donc, que son opposition au pouvoir judiciaire en est une de circonstances plus que de principe. Qu’elle ne vaut que lorsque la Cour suprême prend des positions qu’il déteste. Et que M. Bastien est un hypocrite qui se ferme les yeux sur des faits cruciaux ― et qui essaie tant bien que mal de les cacher à ses lecteurs. Certes, son accusation d’hypocrisie à l’endroit de M. Harper n’est pas sans fondement. Mais ils se valent l’un l’autre. À quelque part, il est dommage que l’amour entre eux soit impossible.

A Monarchist’s Lament

If you’ve read my bitter vituperations against the decisions of the Ontario courts upholding the constitutionality of the citizenship oath, which requires would-be Canadians to swear “true allegiance to Elizabeth II, Queen of Canada, her heirs and successors,” you might have concluded that I am a flaming republican. But I am, in fact, a monarchist; I believe that Lord Acton was quite right when he described (in his fabulous Lectures on the French Revolution) constitutional monarchy as “the richest and most flexible of political forms.” I oppose the citizenship oath nonetheless and, with respect, think those who are approve of it, including my fellow monarchists (such as Gabriel Grantstein over at Slaw, or Konrad Yakabuski in the Globe and Mail), as well as Justices Morgan and Weiler, miss the point of the challenge to its constitutionality.

Those who defend the oath think that the case it is about the concept of the “Queen” to which the oath refers. They insist that because the Queen symbolizes a  political and constitutional system that honours equality, democracy, the Rule of Law, and even the freedom to dissent, the oath, far from disparaging or denying these ideals, honours them too. They argue that because those who refuse to take the oath misunderstand the history and the nature, both legal and political, of the Canadian Crown, their challenge must be rejected

But the key to understanding the challenge to the oath is not the notion of the “Queen”. It is the notion of an oath. An oath ― any oath ― is an appeal to the conscience of the person who swears it. It is an attempt both to make that person figure out what it is that his or her duty under the oath means, just as he or she does with any moral or conscientious duty (to love one’s neighbour, to give to each his own, etc.), and do to bind that person’s conscience actually do this duty. Because an oath is an appeal to conscience, it is not enough to say that those opposed to it misunderstand it. Understanding an oath and figuring out one’s duty arising out of swearing it is a matter of conscience, and as such, it is entitled to respect, be it ever so unreasonable.

(I would add, however, that some of the oath’s defenders, such as Mr. Yakabuski, would really do well to lose their contemptuous tone towards those who interpret it as a personal commitment to a person Mr. Yakabuski himself describes as “a tiny unelected octogenarian with a matching hat and purse.” Mr. Yakabuski asserts that “only … if you have no knowledge of our history … could you take the oath at face value and get hung up on its plain, or literal, meaning.” But he should spare a thought for those who rely on a guidebook produced by the Canadian government, which tells prospective citizens that “[i]n Canada, we profess our loyalty to a person who represents all Canadians and not to a document such as a constitution, a banner such as a flag, or a geopolitical entity such as a country” (2).)

The scope of our legal duties can and must be authoritatively settled by (judicial) authority. The law, whether provisions regarding treason and sedition or those relating to jury duty etc., already defines the responsibilities of citizenship. Courts can, if need be, enforce their interpretations of these duties against those who disagree. The oath, which the government itself seems to consider legally meaningless, adds nothing in this respect. What it does is attempt to go beyond the realm of law, and reach into consciences.

Yet if we wish to call ourselves free, our moral, conscientious duties must be for ourselves to work out. Monarchists do their ― and my ― cause no favours by supporting a legal requirement that people suppress their own moral opinions and blindly accept the judgment of authority as to the scope of their conscientious duties. The constitutional monarchy I believe in is, indeed, a form of government that embraces freedom, dissent, and diversity of views. It goes against these principles, and only gives ammunition to its opponents, when it fails to respect individual conscience.

No Big Deal?

I wrote recently about a decision of the Ontario Court of Justice, R. v. Michael, 2014 ONCJ 360, which held that the “victim surcharge” imposed in addition to any other punishment on any person found guilty of an offence is, in its current, mandatory, form unconstitutional, because it amounted to a cruel and unusual punishment for those unable to pay it and thereby discharge their debt to society. That decision, I thought, was absolutely right. Shortly thereafter, in R. v. Javier, 2014 ONCJ 361, a different judge of the same court refused to follow Michael, declaring himself unpersuaded by it and finding that the surcharge is constitutional. In my view, however, Michael remains the right decision.

Justice Wadden’s reasons in Javier are a bit schizophrenic. The greater part of them is devoted to arguing that, contrary to what Justice Paciocco found in Michael, it is (almost) always possible to sentence an offender to a fine in addition to jail and probation, so that the option of imposing a nominal fine, which results in the surcharge, calculated as a percentage of the fine imposed, if any, also being nominal and thus constitutionally acceptable. It is always possible, in other words, to get around the rule making the surcharge mandatory ― a move which, we should remember, Crown prosecutors have described as a form of “insurrection.”

Yet towards the end of his (rather brief) reasons Justice Wadden also adds that he is “[f]undamentally … not persuaded that imposition of the victim surcharge, even in the form of hundreds of dollars as contemplated in Michael, would meet the high threshold set for a declaration of invalidity pursuant to s. 51 of the Charter.” (That would be s. 52 of the Constitution Act, 1982, your Lordship.) Justice Wadden explains that

For the truly impecunious, there is no risk of being sent to jail as a result of not paying the surcharge, as a court cannot issue a warrant of committal for non-payment if the offender is truly unable to pay … When considering whether the imposition of the victim surcharge is a punishment “so excessive as to outrage standards of decency” of Canadian society I consider that there are many people in society who are in the unfortunate situation of suffering economic hardship and loss. In the context of the criminal justice system, we frequently see victims of crime who have suffered financial loss in the form of medical costs, lost wages, stolen property or the expense associated with attendance at court. Although the financial stress of paying the victim surcharge may be onerous for some offenders I am not persuaded that it is cruel and unusual punishment that would result in a declaration of the invalidity of this legislation. The effect of such a declaration would be that the victim surcharge could not be imposed on any offender, even those who clearly have the means to pay.

I could be wrong, but to me, it sounds that this is the real reason why Justice Wadden finds the surcharge constitutional ― not the possibility to minimize it by imposing a nominal fine. The surcharge, in his view, is simply no big deal, compared to the hardships of crime victims. Here, at last, is a judge who buys into the federal government’s approach.

Yet Justice Wadden does little to rebut Justice Paciocco’s arguments. In Michael, Justice Paciocco detailed the negative consequences of offenders being indebted for the amount of the victim surcharge, even if they could not be imprisoned for failing to pay it. Collection agencies, to which the government assigns the debt, could still attempt to enforce it; the offenders would need to go to court ― probably without the assistance of counsel ― to show their inability to pay; and most importantly, these offenders’ symbolic debt to society, as well as the pecuniary one, would go unpaid, preventing their rehabilitation. Justice Wadden does not even try to seriously consider the position of such offenders, the consequences for whom go well beyond mere “financial stress.”

Instead, he is concerned with the situation of crime victims. It is a laudable concern but, however much the current government might wish the contrary, one that cannot displace the judge’s duty fairly to consider the rights of the offender who stands before him. Indeed, it is worth highlighting that the offender before Justice Wadden was being sentenced for a paradigmatic victimless crime, the simple possession of a prohibited drug. Furthermore, as I have argued here,

to the extent that offenders are, on average, poorer than the victims of crime … the “surcharge” effectively operates as a wealth transfer from the poor to the better-off.

Furthermore,

even by the usual standards of government redistribution from the poor to the well-off, a particularly unjust measure. … [T]he surcharge is arbitrary because the amount … imposed on an offender bears no relation to the “quotient of accountability” that ought to be imposed on them. It varies only according the number of counts of which a person is found guilty, the imposition or not of a fine, and the status of the offence as an indictable one or one punished by summary conviction. A person found guilty of two counts of assault will pay more than one guilty of a single count of first-degree murder. How that is supposed to foster accountability for crimes, or give any sort of relief to crime victims is beyond any conceivable rational explanation.

Finally, Justice Wadden is surely wrong to say that finding the current surcharge provisions unconstitutional would mean that the surcharge could not even be imposed on those who are actually able to pay it. Admittedly, that would be the consequence of Justice Paciocco’s ruling, and perhaps he ought to have given more consideration to the remedy he granted. Instead of simply invalidating the surcharge provisions, it should would, I think, be possible to read in a judicial discretion not to impose the surcharge on offenders unable to pay it (which existed prior to recent amendments to the Criminal Code). It seems a safe bet that Parliament would have preferred imposing a surcharge with such a discretionary safety valve to not imposing one at all. In any case, Parliament remains free to enact such provisions even if the courts simply invalidate the existing ones.

Contrary to what Justice Wadden suggests, it is not true that the “victim surcharge” is no big deal. But perhaps his poorly reasoned and unpersuasive decision is. One can hope that it is Justice Paciocco’s cogent ruling in Michael that will be followed in future cases.

H/t: Elizabeth LeReverend, via CanLII Connects.