Permanent Campaign or Permanent Censorship?

Richard Pildes has an interesting post over at the Election Law Blog, discussing Michael Ignatieff’s take on the “circumvention” of election campaign spending limits by the Conservative Party of Canada in their “permanent campaign” which, Prof. Ignatieff believes (and, in fairness to him, so do many others), destroyed him as a potential Prime Minister. The “permanent campaign” ― that is, political parties spending on advertising outside of the immediate pre-election periods, in which such spending is tightly regulated by the Canada Elections Act ― is a new phenomenon in Canada. (Not quite as new as prof. Pildes suggests; it started in 2007, when it was directed against Prof. Ignatieff’s predecessor, Stéphane Dion.) Prof. Pildes comments:

Why didn’t parties spend like this in the pre-election period before … ? … No reason, except that it just wasn’t done. Yet once political actors, including parties, believe this approach will work and have the funds to implement it, they naturally escape campaign spending limits by shifting spending to the pre-election period.

This, says prof. Pildes, is a problem not just for Canada, but for any other jurisdiction which limits political spending during the pre-election period, but not outside of it. (Prof. Pildes ties these limits to public financing of political parties, but that’s not a necessary connection, and indeed it has now been severed in Canada. Public financing for federal political parties has been abolished, but the restrictions on campaign spending, and hence the incentives to spend outside the regulated campaign period, remain in place.)

Prof. Ignatieff now favours “ban[ning] party advertising outside of election times,” but prof. Pildes notes that

once regulation moves outside of something clearly defined as a discrete “election period,” the issues become much murkier:  does Ignatieff advocate banning all party spending in support or against candidates at all times?  Or does he envision such a ban starting only a certain number of years after the most recent election, say 2-3 years, in anticipation of the next general election?

Expanding the restrictions on political spending and speech applicable during the election period would indeed be problematic. As I write in a paper on the regulation of political spending by “third parties” ― that is, anyone who is not a political party or a candidate for office ― which should appear sometime in the next few months in the McGill Law Journal,

the free discussion so essential to the existence of democracy and of parliamentary institutions is in Canada at no point so constrained as during electoral campaigns. No debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus at the core of the protection of the freedom of expression.

Are we prepared to accept the expansion of these constraints? And if we are, which constraints should we expand? Only those applicable to political parties, which professors Ignatieff and Pildes discuss, or should we also extend the limits applicable to “third parties,” whose political spending during election campaigns is now limited to an almost derisory amount which, as the dissenting judges in Harper v. Canada (Attorney-General), 2004 SCC 33, [2004] 1 S.C.R. 827 pointed out, that doesn’t allow them to use traditional media to communicate with national audiences?

British Columbia has, in fact, attempted to expand its restriction on “third party” spending to “pre-campaign periods,” first of 60 days and then of anywhere between 0 and 40 days, only for both attempts to be declared unconstitutional by its Court of Appeal, in  British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408 and Reference Re Election Act (BC), 2012 BCCA 394. As I wrote here in commenting on the latter decision, I’m afraid that it “is a somewhat wilful, or at least wishful, interpretation of Harper.” The rationale of the Harper majority, which upheld severe restrictions on third party advertising during election campaigns, might be stretched to apply to pre-campaign periods.

But it’s not a sure thing that the Supreme Court would so stretch it. (As best I can tell, BC didn’t appeal the decisions striking down its pre-campaign rules to the Supreme Court, so we had no occasion to find out.) At some point at least, it becomes increasingly difficult to justify silencing, or even muffling, political debate. We might find it acceptable for the 35-day period of an election campaign. But longer, and especially permanent, restrictions come with very high costs for our freedom of expression. The “permanent campaign” might be a detestable innovation, but permanent censorship would be even worse.

More Dead than Ever

While the Supreme Court is getting ready for the oral argument in Québec’s challenge to the abolition of the long-gun registry by the federal government (set for October 8), a different challenge to the constitutionality of the Ending the Long-Gun Registry Act was dismissed by Ontario’s Superior Court of Justice earlier this month in Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140. Justice Morgan held that, contrary to the Clinic’s claims, the abolition of the gun registry did not infringe the right of women either to the security of the person or to equality, and thus did not contravene sections 7 or 15 of the Charter.

Justice Morgan began his s. 7 analysis by discussing the “state action problem” with the Clinic’s argument. The Clinic claimed that the abolition of the gun registry infringed s. 7 because it increased the risk that women would suffer gun violence, in particular from their domestic partners. In its view, its argument was similar to those that prevailed in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 (the Insite case) and in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, where the Supreme Court found, respectively, that a denial of an exemption from drug laws to a safe-injection clinic and the prostitution-related provisions of the Criminal Code infringed s. 7 by increasing the risks to which the clinic’s users and sex workers were subject. But the fact a government policy fails to reduce a risk to which a person is exposed as much as possible is not enough, Justice Morgan found:

[c]ontemporary society is permeated by risk, including the risk of violent crime and injurious use of firearms, but unless that risk is a creation of state intervention it is not within government’s constitutional responsibilities. (Par. 25; emphasis mine.)

There is, furthermore, a crucial difference between the alleged increase of risk as a result of the abolition of the long-gun registry and the facts of the Insite case and Bedford, in that in those cases the government had prevented people from taking steps, on their own, to minimize the risks they were subject to, whereas the gun registry is a government-created risk mitigation scheme (if indeed it is that). The upshot of the Insite case and Bedford is that the government cannot prevent people from reducing the risks they run, not that it has a duty to do it by itself. Indeed, Justice Morgan pointed out,

[t]he Supreme Court indicated in Bedford, at para 88, that while the state cannot make prostitution even riskier than it is, the claimants [in that case] were “not asking the government to put into place measures making prostitution safe” (par. 34).

When Parliament itself creates a risk-reduction scheme, it can expand or limit it as it in its wisdom sees fit. So long as it doesn’t interfere with people’s autonomous risk-reduction endeavours, it does not act unconstitutionally.

The Clinic’s position also suffered, according to Justice Morgan, from a “baseline problem.” As he saw it, the Clinic

use[d] the 1995 Firearms Act [which had created the long-gun registry] as a baseline against which to measure the [new] licensing and registration system … , and finds the latter lacking. In the Applicant’s characterization, while the regulatory regime that existed from 1995 until … 2012 “provided an essential element in the effective protection for the s. 7 rights of women”, the “[Ending the Long Gun Registry] Act’s purpose appears to relate primarily to political aims”. (Par. 41)

But a statutory scheme cannot be made into a constitutional standard in this way. The gun registry’s creation was no more “politically neutral” than its abolition (par. 45). It was a choice of policy and politics, and it can be reversed or revised.

Justice Morgan then turned to the evidence which the Clinic adduced in support of its s. 7 claim, and found it insufficient. That evidence seems mainly to have consisted of statistics showing that gun violence declined in Canada while the long-gun registry was in operation. But, Justice Morgan said, gun violence had been declining before the registry was set up, and the early indications are that gun violence against women has not increased after it was abolished. In fact, as the government argued, there is a long-term trend towards the reduction of violent crime, so that what the Clinic showed was correlation, but not causation. Furthermore, police officers ― including those who served as the Clinic’s expert witnesses ― suggest that the effectiveness of gun registration (as opposed to licensing and background checks, which the abolition of the registry does not affect) is debated and, at best, limited. Thus even if an increase of risk resulting from the abolition of the long-gun registry were a constitutionally cognizable harm, the Clinic, in Justice Morgan’s view, had not demonstrated that the abolition had that effect.

Justice Morgan found that similar evidentiary problems undermined the Clinic’s claim that the abolition of the long-gun registry infringed the Charter’s equality guarantee becaused it would disproportionately affect women would be the victims of domestic gun violence. Again, there is evidence that gun both violence and domestic violence are decreasing. But given the multiplicity of causes likely to be involved, it is very difficult to isolate the gun registry’s role, if any, in these processes. The point, Justice Morgan said, is “not that there is no place for statistical data, but rather that statistical data can rarely, if ever, do the work of proof on its own” (par. 100). Nor was there anything to show that whatever effects the abolition of the gun registry might have on women were discriminatory in the sense of stereotyping or perpetuating past disadvantage. The overall statutory scheme for regulating firearms still tries to reduce gun violence, including in particular gun violence against women. Changing the mix of criminal and regulatory elements in that scheme was not, Justice Morgan said, discrimination.

I think this is the right decision. Justice Morgan’s point about the “state action problem” and the “baseline problem” are well taken, and his concerns about the insufficiency of the evidence to show that the gun registry’s abolition would have the disastrous consequences its supporters expect are justified.

I don’t know whether the Clinic intends to appeal his decision, but its chances of success would be very low indeed, given the Supreme Court’s insistence, in Bedford, that a trial judge’s assessment of social science evidence in constitutional cases is entitled to as much deference on appeal as any other form of fact-finding. Even if Justice Morgan were wrong in has approach to the issue of state action (and I don’t think that he is), his conclusions regarding the evidence would still stand.

For better or worse, this is the brave new world of Charter litigation ― a world in which cases live and die depending on the lawyers’ ability to assemble an evidentiary record and to convince a trial judge of this record of that record’s persuasiveness. And as I wrote here in discussing the potential dangers of this approach, “[t]he government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it.” So here the government was able to show that the general trends in crime reduction, and its other (purportedly) crime-preventing policies meant that it was not possible to establish the effects of the gun registry’s abolition or continued existence with any degree of certainty.

This is not to say that I regret the outcome of this particular case, though others will find it regrettable. I will, however, note the irony of the government’s reliance on statistics showing a long-term general decrease in crime to defend this one element of its criminal-law legislative programme while implementing other, “tough-on-crime,” policies with a total disregard for these statistics. I hope that the courts which will consider the constitutionality of these measures will take good note. The gun registry is more dead than ever ― though the Supreme Court might still resurrect it in Québec. But in killing it, the government might just have inflicted some collateral damage on its other policies. No regrets from me there, either.

Forgotten Balance

Over at Concurring Opinions, Frank Pasquale has a post defending the EU Court of Justice’s decision that enshrined the “right to be forgotten” in European law. Arguing against “a reflexively rejectionist position” which he sees emerging among some American commentators, prof. Pasquale writes that it fails to “recognize the power of certain dominant firms to shape impressions of individuals,” and might lead, by design or otherwise, to an undermining even of the (limited) protections for privacy and reputation which American law recognizes. For my part, I think that prof. Pasquale sets up something of a false dichotomy. There are other options than a free-for-all in which any disclosure of any information is permissible and acceptance of the “right to be forgotten.”

Prof. Pasquale worries about the possibility that people’s medical records or intimate photos will be stolen and posted online. If that happens, he asks,

[a]re the critics of the [right to be forgotten] really willing to just shrug and say, “Well, they’re true facts and the later-publishing websites weren’t in on the hack, so leave them up”?

American law, he explains, provides for some penalties against those who publish purely private information. “Perhaps,” he says, “critics of the [right to be forgotten] want to sweep away these penalties, too. But if they succeed, there will be real human costs.” The right to be forgotten, he concludes, is essential to “guaranteeing a digital future where our reputations aren’t at the mercy of malicious hackers and careless search engines.”

I’m unconvinced. Prof. Pasquale’s concerns are serious, but the right to be forgotten is at once insufficient and excessive to address them.

The information disclosure of which rightly worries prof. Pasquale is intrinsically private. Companies which compile it or to which people entrust it for storage or safekeeping should not disclose it without the consent of the individuals concerned; those who receive such information from people not authorized to communicate it have no business publishing it. The publication of such information is a harm which the law should sanction. But the “right to be forgotten,” at least as articulated by the EU Court of Justice, is at best an indirect protection against this harm. As its name suggests, it is not a right against having private information about you published in the first place. It is not even a right to have private information removed from the websites that originally published it, but only to have links to that information removed from search results. Of course it will make the information that much more difficult to find. More difficult, but not impossible. Something like a (much narrower, as I’ll presently explain) version of the right to be forgotten might be useful to protect us from disclosure of private information, but only as a complement, not an alternative, to going after the actual publishers of such information.

At the same time, the “right to be forgotten” potentially extends to all sorts of information that is not necessarily intrinsically private in the way medical records or intimate pictures are. For instance, back in August, the BBC explained that many of the 12 pages from its website that had been removed from Google’s search results up to that point, concerned court cases ― including those where a defendant had been convicted of a serious crime. (Now, I’ve already written about the difficulties that being mentioned in a court decision can create, and wondered whether anonymizing (at least some) of them would not be better. But, for now at least, the prevailing view is that court cases, including the parties’ names, are generally public matters.) In such cases, there can surely be no question of forcing the actual publishers of the stories to remove them, and the “right to be forgotten” only means, as I recently explained here, that ordinary people, those who do not have much time and/or money for research, will not be able to find them. Even if in some cases a version of the “right to be forgotten” would help us protect what most people will agree is private information, the current European version of this “right” is vastly overbroad.”

So it seems to me that one can easily be against the recognition of a “right to be forgotten” in the shape in which the EU Court of Justice created it, and in favour of protecting people from “malicious hackers and careless search engines” disclosing intrinsically private information about them. It should be possible to craft more narrowly-tailored and more effective regulation, directed in the first instance against the publication of such information and, as a secondary measure, allowing links to infringing information to also be removed. In the inevitable conflict between privacy and freedom of expression, we shouldn’t forget nuance and balance.

 

Missing Blueprints

Last week, in a series of decisions headlined by Bank of Montreal v. Marcotte, 2014 SCC 55, the Supreme Court confirmed the commitment to making provincial and federal laws operate side by side, in the name of co-operative federalism, which has been a staple of its federalism jurisprudence in recent years. When the Court had last addressed the issues of interjurisdictional immunity and federal paramountcy, in  Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, I wrote that, in something of a departure from Lord Atkin’s famous dictum in the Labour Conventions Reference, “the Supreme Court now believes that ‘watertight compartments’ are not enough. Their operation must be complemented by allowing water ballast to flow from one side of the hull to another to keep the ship [of Canadian federalism] aright.” Yet the Court, I said, provided little if any guidance on the way this structure operated. Marcotte is of no assistance in this respect, however important it may prove in other ways.

The federalism issue in Marcotte was whether Québec’s Consumer Protection Act (CPA) applied to banks and, specifically, to the their credit-card operations. The plaintiffs argued that the respondent banks had failed to disclose certain fees and charges in their credit card contracts as the Act required them to do; the banks countered by claiming, among other things, that they either enjoyed an interjurisdictional immunity from the obligations imposed by the CPA, or that the CPA was inoperative with respect to their credit-card operations, because they were regulated by inconsistent federal legislation. In a unanimous judgment by Justices Rothstein and Wagner, the Supreme Court rejected these arguments. (There were other issues too, which I will not consider here, concerning standing in class actions, as well as the interpretation and the effects of the CPA.)

Interjurisdictional immunity prevents provincial laws from “impairing” federal regulation of the “protected core” of a federal jurisdiction. Banking is a federal jurisdiction pursuant to s. 92(15) of the Constitution Act, 1867, so the banks contended that the CPA’s disclosure requirements and provisions sanctioning non-compliance with these requirements could not apply to their credit-card issuing activities. The Court, however, pointed out that

[a] broad application of the doctrine is in tension with the modern cooperative approach to federalism which favours, where possible, the application of statutes enacted by both levels of government. (Par. 63)

Outside the areas covered by precedents concluding that inter-jurisdictional immunity exists, courts must be wary of finding that it applies. Here, without deciding whether credit card activities fall within the “core” of the federal power over “banking,” the Court concludes that, even if they do, the CPA does not “impair” federal regulation:

it cannot plausibly be said that a disclosure requirement for certain charges ancillary to one type of consumer credit “impairs” or “significantly trammels” the manner in which Parliament’s legislative jurisdiction over bank lending can be exercised. (Par. 66)

The banks still retain the ability “to dictate the terms” (par. 66) of their relationship with their customers, and Parliament will not need to legislate to counter the effects of the provincial law.

For its part, the federal paramountcy renders an otherwise valid provincial law inoperative when and to the extent that it conflicts with a valid federal law ― either because it is impossible to comply with both laws or because the provincial law “frustrates” a “federal purpose.” Here, there is no question of impossibility of complying with both federal and provincial law. But the banks invoked two federal purposes which the CPA’s disclosure requirements and sanctions, in their view, frustrated: setting out uniform national standards, and “to ensure that bank contracts are not nullified even if a bank breaches its disclosure obligations” (par. 73). The Court finds that, even assuming these to be the purposes of the federal regulatory framework applicable to banks, neither is frustrated by the CPA. Disclosure requirements are not “standards” for banking products or services, “but rather articulate a contractual norm in Quebec” (par. 79), in the same way as do other general rules of contract law, which the banks accept are applicable to them. Indeed, “the federal scheme is dependent on fundamental provincial rules such as the basic rules of contract” (par. 79). As for the non-nullification purpose, the Court finds that since the plaintiffs are not asking to be released from their contracts with the banks, but only for a restitution of undisclosed fees and damages, it is not engaged. More broadly,

[t]here are many provincial laws providing for a variety of civil causes of action that can potentially be raised against banks.  The silence of the [federal] Bank Act on civil remedies cannot be taken to mean that civil remedies are inconsistent with the Bank Act. (Par. 84)

As I said above, this is very much in keeping with the Supreme Court’s federalism jurisprudence. Yet I cannot get rid of a feeling that that the Court’s decision-making remains very impressionistic, especially on the question of interjurisdictional immunity.

I’m inclined to agree with the court’s assertion that provincial disclosure requirements do not impair the exercise of federal jurisdiction ― but it still is an assertion, not a demonstration. Would a demonstration be possible? I’m not sure, but the Court hardly even tries. The only argument it musters is that Parliament would not need to legislate to oust provincial law, but I don’t think that’s right. Rather, it’s difficult to imagine Parliament wanting to legislate to remove disclosure requirements ― though even that is doubtful, since Parliament might, in theory anyway, replace the somewhat different provincial requirements by a uniform framework of its own. But if, for whatever reason, Parliament decides that provincial disclosure requirements are a problem, it seems to me that it will, in fact, have to legislate to solve it.

The Court is on more solid ground, I think, when it comes to paramountcy. In effect, it seems to suggest that complementary provincial requirements will not conflict with or frustrate the purpose of federal regulations, although parallel (and non-identical) provincial rules might do so. I think that this makes sense, and it is also a more easily applicable standard than what the Court has come up with on interjurisdictional immunity. Still, the Court doesn’t quite articulate this test. Its reasons do not openly go beyond the case before it. So even here, we can only infer the general rules.

Perhaps this is actually sound common law adjudication. We know the general values the law (as developed by the Supreme Court) serves in this area; we know ruling in specific cases; and it is up to us to figure out the general rules that mediate between general values and specific cases. But it’s not how the Court operates in other areas of constitutional law, so it cannot help but feel frustrating. We know what our constitutional structure looks like, but we’re missing the blueprints for it.

UPDATE: At the CBA National Magazine’s blog, Yves Faguy has compiled other posts on Marcotte.

Not Too Late

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

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

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

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

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

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

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

The Power of Google

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

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

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

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

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

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

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

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

H/t: Yves Faguy

Where Credit Is Due

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

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

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

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

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

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

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

What this means is that

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

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

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

In short, subs. 719(3.1)

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

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

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

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

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

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

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

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

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

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