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.

A Parade of Horribles

I wrote yesterday about the decision of the Court of Appeal for Ontario in McAteer v. Canada (Attorney General), 2014 ONCA 578, which upheld the constitutionality of the oath of allegiance to the Queen which would-be Canadian citizens are required to swear. As I said in that post, I believe that that the Court’s decision is profoundly wrong, as was that of the Superior Court (McAteer v. Attorney General of Canada, 2013 ONSC 5895). In my view, the Court of Appeal (and the Superior Court before it) was wrong to focus on the applicants’ mistaken interpretation of the oath of allegiance as a commitment to the person of the monarch rather the notion of a (constitutional) Crown. The fact that the applicants misunderstand the oath and they exaggerate the obligations that taking it would impose on them cannot end the inquiry into the oath’s constitutionality.

Before explaining why this is so, however, I want to highlight two problems with the Court’s discussion of the meaning of the oath. These problems might not be fatal. I take the point that, as for example Philippe Lagassé explains, the reference to the Queen in the citizenship oath really is a reference to “the state and the source of all sovereign authority,” so that the Court of Appeal is right about the oath’s legally correct meaning. My objection is, as I will explain below, that this is really beside the point. Still, some of the Court’s arguments are problematic, and may colour the rest of its analysis, so they are worth pointing out.

One problem I see is with the Court’s discussion of the history of the oath of allegiance and its place in our constitutional structure is incomplete in that it begins with the Royal Proclamation of 1763 and the Quebec Act, 1774 ― and thus ignores the history of oaths of allegiance in England. The Court uses this history to present the oath as egalitarian and inclusive by virtue of its lack of religious test, while masking its authoritarian origin in the times of Henry VIII and his struggle to assert not only his religious, but also his secular power following his break with Rome, detailed in an excellent recent paper by Liav Orgad. This is, in my view, something of a historical whitewashing. The oath of allegiance is certainly less burdensome now than it used to be, but if one relies on its historical significance, one cannot ignore its origins.

The other point I want to make here concerns the Court’s invocation of the “principle of harmonization” to “suggest” ― although not, as I read the decision, to hold ― “that the oath to the Queen in the Citizenship Act cannot be a violation of rights under the Charter” (par. 58) because it is virtually identical to an oath which the Constitution Act, 1867 requires members of Parliament to swear and which, being constitutionally entrenched, cannot be invalidated on Charter grounds. The Court is simply wrong here. On its logic, since a house of a legislature is authorized to exclude media by virtue of its constitutionally entrenched parliamentary privilege, there would be no constitutional difficulty with a court doing so either; yet the Supreme Court has held that the exclusion of the media from a courtroom infringes s. 2(b) of the Charter, and that while the existence of a discretionary power to exclude is justified under s. 1, this power must be exercised with the Charter in mind. Immunity from Charter review conferred by constitutional entrenchment is an exception, and there is no reason to extend it to rules which are not constitutionally entrenched.

Whatever role these errors have played in its reasoning, the crucial, fatal flaw in the Court of Appeal’s decision is the weight it gives to the applicants’ misunderstanding of the oath. The Court repeatedly cites a passage from R. v. Khawaja, 2012 SCC 69, at par. 82, where the Supreme Court held that “a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality,” but it is inapposite. Even assuming that this holding applies beyond the context of allegations chilling effect, in which it was specifically made (the full sentence, from which the Court only cited an excerpt, is: “a chilling effect that results from a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality” (emphasis mine)), it does not apply to the oath because the oath is not a “provision.” An oath, as I argue in a forthcoming paper, is not a simple statutory command to do or not to do something. It is an appeal to a the oath-taker’s conscience; it requires the oath-taker to work out the exact nature and scope of the duties it imposes. Oaths are typically (although admittedly not always) required when these duties are impossible to delineate with sufficient specificity, and thus cannot be codified in a statutory provision. The duty of loyalty imposed by the oath of allegiance is a perfect example. The Citizenship Act does not define what it means for citizens to be loyal, to “bear true allegiance” in the words of the oath. Citizens must do that themselves. So while it makes sense to reject an idiosyncratic interpretation of a statutory command, one cannot so easily dispose of a subjective understanding of an oath. The failure to appreciate this taints the Court’s analysis under s. 1 of the Charter, and is at least partly responsible for its rejection of the applicants’ claims that the oath infringes their right to freedom of conscience and religion.

However, before it gets there, the Court commits another blunder by finding that the imposition of the oath does not infringe the freedom of expression of those who must swear it. It the Court’s view, the purpose of the oath is not to “control expression,” while its effects on freedom of expression are merely incidental and do not deserve disapprobation. The claim that a requirement to make a statement with an obvious expressive content does not aim at “controlling expression” is astonishing. The Court asserts that “[t]he substance of the oath and the history of its evolution also support the conclusion that the oath does not have a purpose that violates the Charter” (par. 74), but however innocuous or even worthy the contents of the oath might be, there is no getting away from the fact that the requirement to swear it is a requirement to engage in expression. Indeed, as the Court itself says with approval, “[t]he application judge held … that the purpose of the oath ‘is … one of articulating a commitment to the identity and values of the country'” (par. 72; emphasis added). How one can find that requiring people to a articulate a commitment does not control their expression is beyond me.

Despite its finding that the oath does not infringe s. 2(b) of the Charter, the Court of Appeal moves on to a s. 1 analysis. This draws heavily on the judgment at first instance, and my criticism of that decision applies to that of the Court of Appeal. The Court’s “reasoning” is largely conclusory, such as its bald, unexplained assertion that “[r]equiring would-be citizens to express a commitment to the quintessential symbol of our political system and history serves a pressing and substantial objective” (par. 92). It ignores the alternative forms of the oath that would do a better job of letting people express commitment to Canada and its constitution because they would be better understood. It notes but fails to seriously address the pervasive misunderstanding of the current oath, which extends to government officials, and does not question the capacity of such a widely misunderstood oath to have any meaningful positive effects on those who take it or for their fellow citizens.

Then again, perhaps the Court reveals (albeit unwittingly) its true opinion of the worth of the oath when it notes complacently that a person who swears it is free to recant it without any sort of consequence. Imagine, for a second, a witness who recants his oath to tell the truth; and then imagine, further, a judge who tells him that this doesn’t really matter. The Court is oblivious to the incoherence of asserting that the oath is not a real imposition on citizens because it is meaningless and can be dismissed while arguing that it serves a pressing and substantial objective and has obvious salutary effects.

Finally, the Court also errs in its treatment of the freedom of conscience religion claims. For one thing, because it fails to appreciate the way in which the oath differs from an ordinary statutory command by enlisting the conscience of the person who swears it, the Court again overemphasizes the applicants’ misunderstanding of the oath. As I explain at greater length my paper, in matters of conscience and religion, subjective understandings are determinative, even if mistaken by some external standard. For another, the Court is wrong both to reject the remedy of exempting those who object to the oath from the obligation to take on the ground that such an exemption would undermine its secular character, and to implicitly conclude that since the applicants’ proposed remedy is unavailable, their substantive claim must be rejected. First, exemptions for religious (and arguably conscientious) objectors have been granted and considered by the Supreme Court, without any argument to the effect that they undermined the secular nature of the rules involved. The fact that Sikh students can wear their kirpans to school in derogation to the general rules prohibiting weapons does not undermine the secular character of these rules. But even if an exemption were not a permissible remedy, the obvious alternative is to invalidate the requirement for everyone, not to maintain it. (This is the Supreme Court’s approach in cases of cruel and unusual punishment ― the Court regards exemptions to mandatory minimum sentences as inappropriate in that context, and requires the mandatory minimum to be struck down.)

The applicants have already said that they would appeal to the Supreme Court. Adam Dodek has tweeted that he expects the Supreme Court to deny leave and, for what it’s worth, I suspect that he is right. But it would be nice if we were wrong. The decision at first instance in this case was bad, and the Court of Appeal’s is, if anything, even worse. It is a parade not merely of mistakes, but of judicial horribles. A cynic who wanted to argue that it is the product of a purely result-oriented reasoning would have some evidence to back up his claim. Regardless, this ruling ought not to be left to stand.

You’re Wrong

Yesterday, the Court of Appeal for Ontario ruled that the requirement that naturalized Canadian citizens swear an oath of allegiance to the Queen is constitutional. In McAteer v. Canada (Attorney General), 2014 ONCA 578, it found that the oath infringed neither the freedom of expression, nor the freedom of conscience and religion, nor yet the equality rights of those who are made to swear it. It further found that, even if the oath violated the freedom of expression, that violation would have been justified under s.1 of the Canadian Charter of Rights and Freedoms. I will summarize the Court’s opinion (written by Justice Weiler) in this post, and keep all the nasty things I think about it for the next one.

Much like Justice Morgan, who decided this case at first instance (in McAteer v. Attorney General of Canada, 2013 ONSC 5895), the Court of Appeal devotes a lot of attention to the meaning of the oath, finding that the applicants’ objections to taking it were based on a misunderstanding, which cannot be the basis of a finding of unconstitutionality. The applicants interpret the oath literally, taking “the Queen” to whom it refers to be a person. In the Court’s view, however, “[a] ‘plain-meaning’ approach to interpretation is inappropriate because it fails to recognize the history and the context in which the oath exists in this country” (par. 32).

The Court traces the history of the oath in Canada to the Royal Proclamation of 1763, which required an oath of allegiance rejecting the Catholic religion, and the Quebec Act, 1774, which did away with this religious requirement and introduced a secular oath. It then outlines the constitutional history of Canada, pointing out that under the Constitution Act, 1867, the Queen is both the holder of the executive power and a constituent part of Parliament. In its view,

[t]he evolution of Canada from a British colony into an independent nation and democratic constitutional monarchy must inform the interpretation of the reference to the Queen in the citizenship oath. As Canada has evolved, the symbolic meaning of the Queen in the oath has evolved.

Viewing the oath to the Queen as an oath to an individual is disconnected from the reality of the Queen’s role in Canada today. (Par. 48 and 50.)

The Court concludes that “in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada” (par. 54).

The Court also points out that members of Parliament are obliged to take an almost-identical oath of allegiance. This requirement, being part of the constitution by virtue of s. 128 of the Constitution Act, 1867, cannot be unconstitutional, because the Charter cannot invalidate another provision of the constitution. This, it finds, suggests that the oath which new citizens are required to take, cannot be unconstitutional either:

[i]nasmuch as the oath for members of Parliament is specifically required by the Constitution, and the Constitution cannot itself be unconstitutional, the harmonization principle and the legal norms of rationality and coherence suggest that the oath to the Queen in the Citizenship Act cannot be a violation of rights under the Charter. (Par. 54)

Moving on to the Charter analysis, the Court finds ― contrary to Justice Morgan at first instance ― “that the requirement to recite an oath to the Queen of Canada in order to become a Canadian citizen does not violate the appellants’ right to freedom of expression” (par. 68). Although swearing the oath is an expressive activity, its purpose, in the Court’s view, is not “to control expression” (par. 71), but rather “to inquire into prospective citizens’ willingness to accept the rights and responsibilities of citizenship” and their “loyal[ty] to the values represented by Canada’s form of government” (par. 73). Thus,

[r]ather than undermining freedom of expression, the oath amounts to an affirmation of the societal values and constitutional architecture of this country, which promote and protect expression. (Par. 74)

Nor is the oath’s “incidental effect on expression” “worthy of constitutional disapprobation” (par. 75). For one thing, an object can disavow the contents of the oath. Indeed, one of the original applicants, who swore his oath and became a Canadian citizen, subsequently recanted his oath to the Queen and “was informed by the Minister of Citizenship and Immigration that his recantation had no effect on his citizenship status” (par. 79). The fact that the applicants believe that taking the oath would prevent them, in conscience, from continuing their anti-monarchist activities, is irrelevant. They are simply mistaken, and their mistake is no basis for a finding of unconstitutionality. Furthermore, even if the explicit reference to the Queen were eliminated from the oath, “any oath that commits the would-be citizen to the principles of Canada’s government is implicitly an oath to the Queen,” (par. 82) since these principles are those of a constitutional monarchy.

Despite its finding that the oath does not infringe the objectors’ freedom of expression (or any other right), the Court also concludes that, even if an infringement had been made out, it would have been justified under s. 1 of the Charter. The Court finds that “[r]equiring would-be citizens to express a commitment to the quintessential symbol of our political system and history serves a pressing and substantial objective” (par. 92). It also considers that it is rational to make citizens pledge allegiance to the Queen rather than some other element of the constitutional structure. While many citizens, and even the manager of Citizenship Legislation and Program Policy at the Department of Citizenship and Immigration, seem to share the applicants’ (mistaken) understanding of the meaning of the reference to the Queen, this only means

that the government needs to better equip those involved in citizenship policy to understand and convey the meaning and significance of the phrase, ‘the Queen of Canada, Her Heirs and Successors'” (par. 94).

On the question whether the oath is minimally impairing of the applicants’ rights, the Court seems mostly to endorse Justice Morgan’s reasons at first instance, and concludes that, considering that a restriction must be found to be minimally impairing if it falls within a range of reasonable alternatives, the oath to the Queen passes this test even though the oath could also have referenced some other element of the constitution. The Court also endorsed Justice Morgan’s finding regarding the balancing of the positive and deleterious effects of the oath, to the effect that the former were substantial, while the latter were not, so long as the oath is properly understood.

The Court then considers the applicants’ claim that the oath infringed their freedom of conscience and religion. It holds that the purpose of the oath is secular, and the fact that the Queen herself must, by law, by an Anglican is irrelevant to it and does not restrict the religious liberty of those who swear the oath. It further concludes that granting the applicants an exemption from the requirement to take the oath “would undermine the societal value or common good derived from a universal religious-neutral declaration” (par. 116). Similar considerations apply to the applicants’ conscientious opposition to the oath and the monarchy in general.

Finally, the Court also rejects the claim that the oath infringes the equality rights of those required to swear it. The very concept of citizenship presupposes that some people do not have it and must satisfy certain criteria to acquire it. These criteria cannot in themselves discriminate on the ground of citizenship. Nor does the fact that swearing allegiance to a person contradict the beliefs of some make the oath, properly understood as expressing a commitment to the Canadian system of government, a form of religious discrimination.

Like Justice Morgan’s, the judgment of the Court of Appeal is based on its conclusion that the people who object to taking the oath misunderstand it. The oath does not mean what it says, and if the objectors, as well as any number of Canadians, including some government officials responsible for citizenship, are wrong about what it means, that’s too bad for them. With respect, it is the Court itself that is badly wrong about this, as I will argue in my next post.

The Economics of Unanimity

It is often thought that judicial unanimity is a valuable commodity. Chief Justices bang heads, twist arms, and break legs in order to get their courts to produce more of it, but they don’t always succeed, and unanimity remains at least somewhat scarce on the U.S. and Canadian Supreme Courts (although more on the former than on the latter, which has been unanimous in judgment in between two thirds and three quarters of its decisions rendered since 2010). The unusually high output of the unanimity production line at the US Supreme Court this year has produced much commentary. But how much do we really know about the economics of unanimity? What is it worth? More precisely, what is its purchasing power? How much does it cost? And is the cost worth what you get in return?

In the New York Times, Adam Liptak reviews some academic attempts to answer these questions (in the American context), including a recent paper by Cass Sunstein. The takeaway from this literature seems to be that unanimity is worth less than is commonly assumed. Mr. Liptak notes that people, including judges, often think that “[t]he public may be less likely to accept and follow decisions that would have gone the other way with the switch of a single vote.” Yet experiments ― and perhaps even historical experience ― do not bear out this intuition. And while another claim about the value of unanimity, that unanimous judgments are less likely to be reversed, is apparently supported by the facts, the number of overturned decisions is so small to begin with that this value is more illusory than real. Finally, although unanimous judgments might in theory make for a clearer legal landscape, they often fail to deliver on this promise too. Mr. Liptak points out that

Supreme Court opinions are the product of negotiation and compromise, which is why they can read as if written by a committee. A nine-member committee does not seem likely to produce crisper prose than a five-member one.

At the Volokh Conspiracy, Jonathan Adler chimes in, writing that

[t]he cost of broad agreement may be an opinion that speaks in generalities and pushes aside the potential points of disagreement.  Concurrences and dissents often draw clearer lines and are more analytically coherent than majority opinions. The sorts of opinions that result from efforts to achieve greater unanimity are different from those that merely seek the median vote.

At the same time, coalescing around a narrow holding allows the Court to avoid premature resolution of a potentially divisive question, perhaps leaving it to be resolved when it can be resolved in a unanimous way or even putting it off indefinitely.  This is itself a virtue of judicial minimalism, according to some.

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These are useful observations, so far as they go, but I think some additional clarifications are necessary for us better to assess the value (or lack thereof) of unanimity.

For one thing, we need to be clearer about what it is that we are talking about. Unanimity in judgment does not necessarily mean unanimity in reasoning, and indeed in some of the recent decisions of the U.S. Supreme Court (for example in NLRB v. Noel Canning, a case considering the constitutionality of President Obama’s “recess appointments”) unanimous judgment masks sharp disagreements about the law between a majority and a concurrence. In such cases, it seems unreasonable to expect the putative effects of unanimity, whether positive or negative, to manifest themselves.

For another, even unanimity in opinion can be of different sorts. While some unanimous decisions will indeed be the products of laboured compromise, and thus be likely to exhibit the flaws described by Mr. Liptak and prof. Adler, others are in fact the products of genuine agreement about the legal principles involved and their application. Probably most decisions of intermediate appellate courts (which have unanimity rates much higher than Supreme Courts, both in the U.S. and in Canada) are of this sort, because they are rendered in “easy” cases where the law is relatively clear. Some decisions of Supreme Courts, at least, are of this sort too. I don’t know American law well enough to give examples, but they are plenty this side of the border ― among the more notable recent cases, Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, comes to mind. Of course, it might not be easy for external observers to distinguish unanimity of agreement from the unanimity of compromise (and a single decision might involve both), but it seems likely that the former sort is more valuable, at least for clarifying the law (though not if one values unanimity for requiring narrow rulings!) ― but also less susceptible of deliberate manufacture by a court.

As for the value of unanimity as a means of exchange for acquiring legitimacy, I wonder whether an inquiry into the value “ordinary” people attach to it is the relevant one. The issue here does not concern unanimity alone. Rather, given well-documented and pervasive political ignorance, I wonder how much people outside the legal and political communities notice and care about judicial decisions at all, and to the extent that they do, how much their views of these decisions are influenced by what politicians (and perhaps experts) tell them. It is possible, and indeed likely, that the perceived legitimacy of the vast majority of, and perhaps of all, judicial decisions depends on the opinions of a certain class of journalists, lawyers, and politicians. If that is so, then an empirical assessment of the value of unanimity should look at the views of such people, and not of random citizens.

Finally, we might need a fuller picture of the transaction costs involved in achieving unanimity. Presumably, producing a decision that is unanimous in reasoning ― at least when unanimity of of compromise rather than of agreement is involved ― takes time and effort, which might, in theory, otherwise be expended on producing better decisions in other cases. It also, by definition, requires individual judges to sacrifice the opportunity to implement or even express their views about the law, and prevents disagreement from being aired in the open. It seems at least plausible that this will, for lack of a better term, undermine the morale of the court or at least of the more independent (or headstrong) judges. I don’t know, I’m afraid, whether this is a real problem (perhaps readers who have clerked at the Supreme Court can tell!). Judges surely know that they sometimes need to “take one for the team”, though nobody, I imagine, like to have to do that very often. In any case, the possibility is worth considering.

All that to say that, as with other commodities, unanimity doesn’t have any “true” value. How much it costs and what it can buy depends on a number of contextual factors. A quest, or demands, for unanimity that ignore these factors will likely be misguided, and perhaps pernicious.