Pronoun Police?

Does human rights legislation let government police people’s use of pronouns?

I have already written here about the way the federal government’ recently introduced Bill C-16 will restrict freedom of expression by adding “gender identity or expression” to the long and growing list of “identifiable grounds” of criminalized hate speech. In that post, I did not touch on the other clauses of the bill, which will similarly add “gender identity or expression” to the list of prohibited grounds of discrimination in the Canadian Human Rights Act. However, that too will interfere with freedom of expression ― and, Eugene Volokh makes clear in a recent Volokh Conspiracy post, in ways that are quite insiduous. indeed, given the narrow ― if still unjustifiable ― scope of the Criminal Code‘s hate speech provisions, this interference will quite possibly be the more significant one.

The issue prof. Volokh highlights is the application of anti-discrimination legislation to police the pronouns that people ― for example, employers or co-workers ― use to refer to transgender persons. He describes a dispute involving an Oregon teacher who insisted on being referred to as “they,” rather than “he” or “she.” Prof. Volokh had previously written about a document in which the New York City Commission on Human Rights opined that transgender persons are entitled to demand that others refer to them by their preferred pronouns, including those that are not in general usage among English-speakers (such as “ze” and “hir”).

Similar issues can arise in Canada, although a cursory CanLII search seems not to bring up decided cases where they were front and centre. Still, the use of pronouns seems to come up at least as a peripheral issue in some human rights disputes. (The government’s “use of binary gender designation on driver’s licenses and health cards” (T.A. v. Ontario (Transportation), 2016 HRTO 17, [1] (interim decision)) and in other contexts is also at issue in some disputes under provincial human rights legislation, but it doesn’t raise the same freedom of expression issues that arise in the private sphere, especially in the context of employment). Moreover, the Ontario Human Rights Commission has published a “Policy on preventing discrimination because of gender identity and gender expression” which states, among other things, that “[g]ender-based harassment can involve …  [r]efusing to refer to a person by their … proper personal pronoun” (18). While the word “proper” is ambiguous insofar as it doesn’t make clear who decides on a pronoun’s propriety,” the policy also states that “[t]rans students have the right to be addressed by their chosen … pronoun” (46; emphasis mine), and makes other references to chosen, and not only “proper” pronouns. This suggests that the Commission would support claims to the effect that use of pronouns other than those preferred by the person to whom they refer are discriminatory.

Why is that a problem? Isn’t referring to people the way they ask to be referred to a matter of common courtesy? Common courtesy, perhaps, although I’m not convinced that common courtesy can require one to use invented words. But, be that as it may, the issue is not what courtesy requires, but whether it is right that the law should be used to enforce these requirements. As prof. Volokh explains, government intervention into the way people speak, especially in the context of private relationships (for example between employer and employee or among fellow-employees in a private firm) is “a major intrusion on … freedom generally, and free speech rights in particular.” He writes:

Compelling people to change the way they use the ordinary, commonplace words of everyday speech … is a serious imposition. Some transgender people claim that using their preferred pronouns is required as a matter of “respect.” But I don’t think it’s at all respectful to demand that others change their speaking this way, and indeed to coerce them into doing this. …

Nor is this just a matter of asking for equal treatment. People don’t generally get to choose their pronouns, come up with new pronouns for themselves, or change the grammatical features of normal words. While the custom is generally to use others’ names, there is no such custom as to pronouns. If a Quaker insisted that people call him “thee” instead of “you” (Quakers generally don’t insist on that, but if everyone gets to choose a pronoun, then why not?), I don’t think we would — or should — feel obligated to do so. Likewise for “they,” used for reasons of sexual identity as opposed to “thee” for religious identity.

Moreover, the insistence on the use of certain pronouns in preference to others is likely to be inherently normative, if not outright political. It is, prof. Volokh says, an attempt “to convey an idea about language and how language should be,” and those who go along with the demands “will likewise be seen as buying into that idea.” Some may think that this idea is innocuous; others may find it good. But, as prof. Volokh notes, “trying to force people to endorse a particular view on these questions by requiring them to use this highly conspicuous, nonstandard usage” is a violation of their freedom of expression. Prof. Volokh argues that it is also unconstitutional under U.S. law.

In Canada, things would not be so clear. On the one hand, the Supreme Court has held, notably in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, that anti-discrimination legislation can restrict the freedom of expression and be found “demonstrably justified in a free and democratic society” under section 1 of the Charter. On the other, Whatcott emphasized the narrowness of the prohibition on hate speech and the extreme character of the expression which it served to censor. Perhaps significantly, it also stressed “[s]ocietal harm flowing from hate speech” and insisted that “[t]he feelings of the … victim are not the test,” [82] though it is doubtful that this emphasis would survive in the context of a straightforward anti-discrimination case. A further source of difficulty in analyzing the issue is that the focus, in Canadian freedom of expression jurisprudence, on what Whatcott described as “the values underlying freedom of expression” [65] ― self-fulfillment, search for truth, and democratic participation ― isn’t particularly well-suited to resolving a dispute where grammar, rather than the content of expression, is at stake. (This is unsurprising since, as I noted here, these values weren’t intended to be invoked in cases where the law at issue sought to limit expression on the basis of its content; their use in all freedom of expression cases is the product of a doctrinal sleight of hand.)

Ultimately, the constitutionality of the government’s policing of pronoun use under the authority of human rights legislation would probably depend on whether courts think that the objective of ensuring equality for transgender people can be achieved without it ― subject to the courts’ tendency to approach this issue with a good deal of deference to the government ―, and perhaps also on the outcome of a balancing between the restriction on free expression that it would operate and its beneficial effects. I don’t think we can be certain of the outcome, but given the Supreme Court’s general readiness to countenance infringements of the freedom of expression, I suspect that it would be more likely than not to uphold pronoun use requirements imposed by human rights authorities. And that’s without even wading into the mess of the standard of review that courts would apply to these authorities’ decisions…

Yet that would be unfortunate. Whatever we think of the propriety of governmental interference with economic decisions, such as whom to hire or to contract with, in the name of equality, we should agree that similar interference with the very way we speak is a more serious matter. I have no sympathy for the view, often expressed in the context of litigation about same-sex marriage, that courts should not upset longstanding traditions. Courts can certainly do so when no one’s rights or liberties are adversely affected, as was the case with same-sex marriage. But here the situation is different. The issue isn’t that the state would be making itself into an engineer of social change ― it’s that it would be doing so at the expense of individuals whom it would be conscripting for this purpose, and moreover that the conscription concerns not the economic sphere, but speech itself. Again, it may be that the change in question would be beneficial one. But there are means to which the state should not be able to resort even in the pursuit of worthy ends.

Constitutional Purposes vs. Constitutional Text: On R. v. Pino

In my previous guest post at Double Aspect, I asked an intractable question: what is it that we are doing when we are engaged in constitutional interpretation?  Depending on how one answers this question, different sources of meaning will become more or less significant.  However, one source must always be at least relevant: the Constitutional text itself.  It is the one, and perhaps only one, fixed star in the constellation of sources one draws upon in the course of constitutional interpretation, and I have previously argued that we should pay particular attention to it as a result.  The judicial conscience or temperament, social values, public policy objectives, academic prescriptions, international law, and many other potential sources, may differ between reasonable people and may change with the times. The actual Constitutional text can and will not, and it is only source that has withstood the crucible of democratic decision-making and been enacted into law. While the text alone cannot answer many of our difficult questions, when it does give an answer – or, as importantly, rule out an answer – we should consider that significant.

Of course, no plausible approach to constitutional interpretation self-consciously ignores the text or treats it as irrelevant– but some pay greater attention to it than others.  A recent Ontario Court of Appeal decision, R. v. Pino, asks us to consider how much attention is enough.

I will not get too deep into the facts of that case, because they tend to complicate matters, and I happen to think that the very same outcome was available by another route without getting into the interpretive swamp into which I now leap. But in very brief: the police received a tip that the accused was running a grow-op, which seemed to be borne out by subsequent observation of her residence; the police followed the suspect, obtained incriminating evidence from the trunk of her car in a lawful search incident to arrest, but committed Charter violations in the course of that arrest, then failed to adequately inform the accused of her right to counsel, and denied that right for a period of time later on.

The issue I am interested in was the Court’s conclusion that evidence otherwise collected lawfully can be considered “obtained in a manner” that infringed the Charter, due to a subsequent Charter breach. The section at issue is section 24(2), which provides:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [emphasis added]

As the Court of Appeal in Pino notes, this provision, plainly read, seem to require a causal connection between the Charter breach and the obtaining of the evidence:

On a superficial reading of s. 24(2) one might be tempted to conclude that the “obtained in a manner” requirement can only be met by a causal connection between the breach and the discovery of the evidence: “but for” the breach the evidence would not have been discovered. [para 50]

However, the Court found that one should resist that temptation, because “the Supreme Court has long recognized that a causal connection is unnecessary” [para 50]. We should pause to consider why.

As I read the Supreme Court’s decision in R. v. Strachan (and I confess that I am slightly outside my comfort zone here), the primary reason the Court gives for why “obtained in a manner” does not require a causal connection between a breach and the discovery of evidence is because it should not. The Court says that including a causation requirement (an unavoidable and familiar inquiry in many areas of law, but leave that aside) would present a “host of difficulties” [at para 39]; it would be ungenerous and restrictive [at para 40-42]; and it would prevent the courts from reaching what the Court considers to be the “more important” branch of the 24(2) inquiry, which is whether the admission of the evidence would bring the administration of justice into disrepute [at para 47].  In short, requiring a causal connection would be not “useful”, “fruitful”, or ‘sensible’; a “better approach”, according to the Court, “would be to consider all evidence gathered following a violation of a Charter right, including the right to counsel, as within the scope of s. 24(2)” [para 45].

These may all be excellent reasons not to link the exclusion of evidence to whether or not they were “obtained in a manner” that breached the Charter. But as a matter of interpreting that language, the logic (taken alone) is somewhat unsatisfying: just because one interpretation would have consequences an interpreter does not consider sensible does not necessarily confer a license to circumvent an authoritative direction. (The fact that it may not be sensible to locate a stop sign on a normally-vacant rural road does mean that the sign actually says “yield”.)

The Court of Appeal in Pino follows the Strachan logic quite closely, and expands it quite naturally, to capture Charter breaches that occurred after the evidence was obtained. In coming to that conclusion, the Court quoted the eminent Professor Kent Roach, who points out that:

From a regulatory perspective, it should not matter whether the evidence was obtained before or after a serious Charter violation. In both cases, the administration of justice could be brought into disrepute if the courts appear to condone a serious Charter violation. If the court is concerned with responding to serious violations, there is no reason why evidence discovered before a violation should not be considered for exclusion. [para 69]

Thus, and notwithstanding the Supreme Court’s apparent direction that evidence must be gathered following a breach to qualify for exclusion under 24(2) [Pino at para 63], the Court of Appeal devised an approach it considered more sensible, and better directed at achieving the purpose of the section:

A generous approach to the “obtained in a manner” requirement makes good sense because this requirement is just the gateway to the focus of s. 24(2) – whether the admission of the evidence would bring the administration of justice into disrepute. (…)

So, should it make a difference whether the s. 10(b) breaches occurred before or after the discovery of the evidence? I do not think so. In either case, the administration of justice could be brought into disrepute if the court condoned serious Charter violations. [paras 56, 77, emphasis added]

In short, the Court appears to reason that the “overall purpose of the section”, which it finds is to determine “whether admission of the evidence would bring the administration of justice into disrepute” [at para 51], would not be achieved by being too finicky about exactly how or when that evidence itself was obtained.

However, as the Court of Appeal itself recognized earlier in the judgment, 24(2) imposes two requirements for the exclusion of evidence: 1) that it was obtained in a manner that violates the Charter; and 2) that its admission would bring the administration of justice into disrepute (see Strachan at para 36, Pino at paras 35-36). A provision permitting the exclusion of evidence wherever the administration of justice would be brought into disrepute could be easily drafted. Here, look, I’ll draft one now:

(2) If a person charged with an offence has had their Charter rights breached, the Court may exclude any evidence if the admission of it in the proceedings would bring the administration of justice into disrepute.

But that is not the provision in the Charter, and I think we should be cautious before reading it in that manner.

In fairness, the Court of Appeal did not go that far, emphasizing that there must at least be some “contextual” link between the breach and the evidence, whatever the sequencing of the two [paras 72-74].  Returning to its reasoning, the Court of Appeal quoted with approval the trial judge’s extra-judicial writings, in which he had observed:

There are also sound reasons of policy for leaving this door open. Assume that the police discover marijuana during a lawful and reasonable pat-down search and then publicly and needlessly go on to strip search the suspect. Is a court to be deprived of the power to exclude the evidence because of the sequence of events? To insist on the breach preceding the discovery of evidence as an absolute precondition to exclusion means that ex hypothesi evidence can be admitted even where its admission would bring the administration of justice into disrepute, just because of the order in which things happened to occur.

As in Strachan, this is an excellent reason for not including certain words (like “obtained in a manner”) in a constitutional provision, but with great respect, I am not sure how far the logic takes us as a matter of interpreting what those words mean.  One does not typically ignore one requirement because applying it would prevent him or her from considering the second requirement. That is not normally how “requirements” work. (It might be how “gateways” work, to use the Court of Appeal’s word, but only to the extent that gateways not actually require anything or serve any discernable purpose.)

This is a relatively intuitive point that I fear can be obscured by lawyerly creativity, so consider a direction from your parents: “If you want dessert, you may have some, but only if you finish your supper first”. No non-lawyer familiar with the English language would suggest that a child may ignore the supper requirement because it would be impractical in some circumstances to eat supper, or because it would prevent the child from focusing on the “more important” inquiry of whether the child wants to have dessert.

And I am not sure that this trouble can be avoided by reciting the words “broad” and “generous” over and over. It is worth pointing out that every time evidence is excluded from a proceeding, society’s interest in having persons held accountable for the commission of offences is compromised. Accordingly, the old common law rule was that all relevant evidence was admissible, with courts adverse to the conclusion that the “criminal is to go free because the constable has blundered”. Section 24(2) has unequivocally changed that, and to many of us, for the better; society, like the accused, also have an interest in law enforcement acting in a constitutionally sound manner. But that does not make the exclusion of evidence somehow costless, and on some level, it must have been that trade-off motivating those charged with drafting and approving the “obtained in a manner” requirement.

The same tension exists whenever it is the constitutionality of a statute that is at issue. Every time the Court reads a Charter right or freedom broadly and generously, they necessarily read the corresponding scope of democratic governance narrowly and restrictively.  Of course, this tension is an unavoidable (and expected) result of enacting constitutional rights; every application of the Charter, no matter how narrowly interpreted, limits the scope of democratic self-governance to some extent, which is entirely the point of entrenching constitutional rights.  So pointing out consequences is not suggest the courts should ignore their constitutional function; it is only to suggest that any gain in terms of rights comes at a cost in terms of democracy.  As such, an overly broad interpretation results in an unduly narrow scope for democratic self-governance, and vice versa.  It is not obvious to me that either error should be deemed presumptively preferable, and the proposition that Charter rights should necessarily and always be interpreted as broadly as possible is more often asserted than defended.  A sound interpretation of any Charter provision, including section 24(2), may be broad, or it may be narrow, or it may be in between, but presumably that should be the conclusion of the interpretive process, not the predetermined objective.

One other point might be made. With each step we take away from genuinely trying to understand what the text means, the next step further away gets easier. The Court in Strachan found that the phrase “obtained in a manner” imports no strict causal requirement, but nevertheless stated that any breach at least had to precede the discovery of the evidence. This chronological threshold has now been scrapped, essentially because it made no sense once you have deemed causation to be irrelevant. The next judicial step may be further away, still: if maintaining the repute of the administration of justice is our primary (or exclusive?) goal, why should we insist on any meaningful connection between the breach and the discovery of evidence? Is that requirement not ‘artificial’, in the same way as the other thresholds; i.e. because, in certain cases, it may prevent us from reaching the “more important” inquiry of whether admission of the evidence would bring the administration of justice into disrepute? For instance, why should evidence collected lawfully be excluded because a suspect was beaten savagely in the course of an immediately succeeding arrest, but not if the savage beating occurred back at the police station a few hours, a day, or two days later?

The point is that while each step away from the one before may seem minor and defensible enough, if we keep walking we may eventually lose sight of where we started. I should state my view that the Court of Appeal’s decision in Pino has much to recommend it: while a chronological requirement makes sense with a causation requirement (something cannot be caused by something that comes after it), it does not seem to serve any obvious purpose if we are not at all concerned with causation. Thus, as a matter of reading the case law, I’m not sure the Court of Appeal’s decision can be gainsaid. But as a matter of reading the Constitution, I wonder if we have not gone too far, or are at least teetering on the edge: we have now arrived at a situation where evidence may be considered to have been “obtained in a manner” that breaches a Charter right, because a Charter right was breached after the evidence was “obtained in a manner” that does not breach a Charter right.

Professor Sankoff made something like this point on twitter, asking: “isn’t it just time to stop pretending that ‘obtained in a manner’ has any meaning?” Now, I do not take the Professor to be implying that the words are actually meaningless; “obtained in a manner” is not gibberish, it is a grammatically sound and intelligible English phrase. The question he may have been asking is whether we should stop pretending that we care what that meaning is, and that is a fair question, if the answer could possibly be “no”.

Finally, and I cannot stress this next point enough: downplaying the ‘obtained in a manner’ requirement might result in a better provision; it may be easier to apply; it may be a more just and sensible provision; and I may well prefer it myself, if I had my druthers. So I do not question whether where we have ended or might ultimately end up may be preferable in many respects; I question whether implicitly redrafting the language in a way that is more preferable constitutes an “interpretation”, or something else.

As I’ve argued before, where judicially-defined purposes not only inform but overwhelm the text, we might well end up with a better constitution; but it will be one to which no democratically elected body assented. Maybe we don’t care about that, or at least not very much, as long as we approve of the results. And we can certainly take solace in the fact that our judiciary is comprised of thoughtful, principled, and eminently – well, sensible – people, and I personally have no doubt on that score.  If I were to choose a group of people I trust with writing a new constitution, our judges would be among the top of my list.  But for the time being, they have been tasked with interpreting the Constitution written and approved by others, not to write it anew. While the line between the two functions is murky, there must be a line.

Oliphant on R. v. Pino

Announcing a guest-post by Benjamin Oliphant

Benjamin Oliphant, who recently published a guest-post on constitutional interpretation in the context of the debate about whether Parliament can require new Supreme Court judges to be bilingual, will be back with another post later today. He will be returning to the topic of constitutional interpretation, this time to comment on the decision of the Court of Appeal for Ontario in R. v. Pino, 2016 ONCA 389. I am looking forward to it.

Churchill on Prison

Winston Churchill’s thoughts on his time as a prisoner (of war)

I’m not sure, and am too lazy to verify, whether if Winston Churchill is the only head of a Commonwealth government to have been a prisoner; but there cannot have been many. (UPDATE: As my friend Malcolm Lavoie points out to me, Nelson Mandela is another example. It is rather stupid of me to have forgotten that and, as you will presently see, quite ironic.) Churchill did not long stay in captivity ― he escaped the converted school where he (a war correspondent at the time) and British officers taken prisoner during the early days of the Boer war were held ― but the experience still marked him, and he wrote about it in his memoir My Early Life, written in 1930:

[T]he whole atmosphere of prison, even the most easy and best regulated prison, is odious. Companions in this kind of misfortune quarrel about trifles and get the least possible pleasure from each other’s society. If you have never been under restraint before and never known what it was to be a captive, you feel a sense of constant humiliation in being confined to a narrow space, fenced in by railings and wire, watched by armed men, and webbed about with a tangle of regulations and restrictions. I certainly hated every minute of my captivity more than I have ever hated any other period in my whole life. (273)

In My Early Life, Churchill says relatively little about his philosophy, and almost nothing about his political career in the 1910s and ’20s, focusing mostly on telling the story as he lived it at the time of the events. However the topic of imprisonment prompts a rare digression:

Looking back on those days, I have always felt the keenest pity for prisoners and captives. What it must mean for any man, especially an educated man, to be confined for years in a modern convict prison strains my imagination. Each day exactly like the one before, with the barren ashes of wasted life behind, and all the long years of bondage stretching out ahead. There in after years, when I was Home Secretary and had all the prisons of England in my charge, I did my utmost consistent with public policy to introduce some sort of variety and indulgence into the life of their inmates, to give to educated minds books to feed on, to give to all periodical entertainments of some sort to look forward to and to look back upon, and to mitigate as far as is reasonable the hard lot which, if they have deserved, they must none the less endure. (273-74)

This is, I think, something that those in charge of prison policy at various levels would do well to consider ― all the more since they, unlike Churchill, will typically lack the experience, however short, of the shoe being on the other foot.

And speaking of books for a mind to feed on, whether or not the body that houses it is in prison or at large, one can find worse than My Early Life. Though it is, no doubt, somewhat politically incorrect by our standards, the events it tells are fascinating; the author’s philosophical observations, though infrequent, are sharp; there is a somewhat wicked pleasure in reading it while knowing what Churchill did not know when it wrote it ― the events that would made him one of history’s great heroes, instead of a minor footnote; and last but not least, it is brilliantly written and thus simply a joy to read.

Permanent Censorship, Again

Ontario’s proposal for regulating pre-campaign political spending is wrong

Earlier this week, The Globe and Mail reported that the Ontario government is proposing to introduce legislation that would limit the flow of private money into the political process (and introduce public subsidies to political parties). There is no bill yet, as the government is consulting with (some of) the opposition, but there is a very handy table that sets out the details of the government’s proposal and compares them to the rules in other Canadian jurisdictions. In this post, I want to discuss one aspect of the proposed changes: the limitation of “third-party” spending during the six months prior to a scheduled general election to 600,000$ (see the table at p. 4). This proposal is, in my view, unconstitutional, and it is quite possible, although not certain, that the courts, who are likely to be asked to rule on the issue, will agree.

As is clear from the table, a number of Canadian jurisdictions limit the expenses that citizens, unions, corporations, and social movements who want to make their views on political issues known, collectively known to election law under the derisive name of “third parties,” can incur during an election campaign. The Supreme Court upheld the principle of such limitations in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, and it upheld the federal limits in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827. No Canadian jurisdiction, however, currently limits third party expenses incurred prior to the official election campaign period.

What the table doesn’t say though is that British Columbia has tried to do so, only for its attempts to be twice found unconstitutional by the province’s Court of Appeal. In British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408, the Court struck down limits imposed during a sixty-day pre-campaign period. Then, in Reference Re Election Act (BC), 2012 BCCA 394, the Court took the view that limiting third-party expenses during a period that could, depending on the dates of legislative sittings, vary from 0 to 40 days would also be unconstitutional. The province did not appeal on either occasion, so that the Supreme Court has not had an occasion to pass on the issue.

In commenting on the latter decision, I wrote that I wasn’t sure that Court was correct to conclude that Harper did not apply to the pre-campaign limitations of third party spending. Its rationale ― that the civil society needs to be silenced in order to make election campaigning a “level playing field” on which political parties can frolic unimpeded ― could be applied to the period preceding the official campaign, especially if the spending of political parties is also limited during that period, as it would be under the Ontario government’s proposal (see the table at 3). But, as I noted when discussing musings in Québec and within the federal government about limiting third party spending prior to or between election campaigns, Harper can indeed plausibly be read as precluding the extension of spending limits beyond the bounds of the election campaign.

In response to the dissent’s (cogent, in my view) observation that the spending limits imposed on third parties prevented them from communicating effectively, the Harper majority observed

that third party advertising is not restricted prior to the commencement of the election period. Outside this time, the limits on third party intervention in political life do not exist. Any group or individual may freely spend money or advertise to make its views known or to persuade others. [112]

This was an important part of the majority’s reasoning on the way to its conclusion that the spending limits were “minimally impairing” of the freedom of expression, and thus justified under section 1 of the Canadian Charter of Rights and Freedoms.

Beyond predicting of what the Supreme Court would or would not do if confronted with pre-campaign spending limits, it is, however, important not to lose sight of the principles at stake. As I wrote in my post on the possible introduction of limits on third party spending between federal election campaigns,

It is important to appreciate just how far-reaching an attempt to control “third party” spending between elections would be. It would extend to all advertising related to political parties or their candidates, including by taking position on issues “associated” with the party or the candidate. Moreover, in addition to dollar limits, the spending control regime includes onerous registration and disclosure requirements. Any individual, group, or organization that wanted to engage in political discourse would have to register with Elections Canada and keep it informed about its income and expenses. In effect, an extension of the rules on “third party” spending between elections would be a step towards the imposition of a regime of wholesale political censorship in Canada.

There are a couple of additional issues with the Ontario government’s proposal worth highlighting too. One concerns federalism. While provincial and federal electoral processes are separate, the issues and, to some extent anyway, the parties involved in them are not quite distinct. A limit on the ability of a civil society group to speak out about an issue relevant to a provincial election can also be a limit on that group’s ability to speak out on an issue ― that same issue ― relevant to federal politics. If these limits are imposed for a short time, it might be argued ― though perhaps not very convincingly ― that the interference with the other government’s sphere is incidental. But the longer the limits, the more tenuous that case is. There is good reason why Justice Rand wrote, in Switzman v. Elbling, [1957] SCR 285, that “[u]nder [Parliamentary] government, the freedom of discussion in Canada, as a subject-matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion,” (306) and is therefore a federal, not a local concern. We have not given much thought to the relevance of this point to provincial electoral regulations, but we ought to before expanding them as much as Ontario seeks to do.

The other point concerns the proposed definition of “political advertising” (at p.5 in the table). It is modelled on the one in section 319 of the Canada Elections Act, and while not nearly as objectionable as the one used by Québec in section 404 of its Election Act (whose defects I discussed here), it is still problematic in that it is not fully technologically neutral. As I explained here (and in my article on the regulation of third parties and their role in contemporary Canadian politics),

the Canada Elections Act, for a reason that I do not understand, treats online communications differently from more traditional ones, in that it only only exempts online communications by individuals, and not those of organizations (whether corporations, trade unions, etc.) from its definition of electoral expenses. By contrast, for other forms of communications, notably those published in the traditional media, whether exempt from or included in the definition of (restricted) electoral expenses, the messaging of individuals and that of entities are treated in the exact same way. The singling out of online communications for a more stringent rule should be repealed.

Regardless of the views its government and, eventually, the courts take on the other issues I have raised here, it would be unfortunate if, legislating in 2016, Ontario were to repeat a mistake made by Parliament in 2000.

As I also explained in my article, “third parties” play an increasingly important role in contemporary politics, injecting ideas into the political debate which political parties prefer to focus largely on the personalities of their leaders and a select few wedge issues. I am therefore skeptical about the wisdom of regulating them at all. However, even if a case for limited regulation during the relatively short duration of an election campaign can be made out, there is no justification for extending regulation to long periods of time outside the campaign period. Ontario’s plans in this regard would quite possibly be found unconstitutional by courts, and in any event would be a most unfortunate move in the direction of political censorship. They should be scrapped.

Bilingualism, the SCA Reference, and Buffet-Line Constitutional Interpretation

Professors Grammond and Glover, as well as my gracious host Léonid Sirota, have all addressed the constitutionality of requiring judges to be bilingual in order to be qualified for appointment to the Supreme Court. In my view, all are excellent efforts to come to grip with difficult constitutional problems, and taken alone, I find each of them plausible and compelling.  Taken together, they reveal a larger maxim: that we cannot agree upon an answer to something unless we agree what the question is. That is: what are we looking for when we are doing constitutional interpretation? Are we looking for the framers’ specific intentions, whether or not those intentions are successfully manifested in constitutional language? Should we seek to achieve the framers general purposes, derived from any range of sources? Are we looking for the meaning of the words that they set out, as understood by a reasonable person? Are we seeking an interpretation that best fits with the structure of our institutions? Or what we need as a society (distilled through the views and opinions of nine eminent jurists) at the present moment?

Each of these options is reflected in the approaches offered so far, and unsurprisingly, they lead to very different outcomes, and different readings of the SCA Reference. I provide my own tentative take on each of the arguments presented so far, a task I undertake with some trepidation, as I’m convinced I have not thought as long, or read as widely, about this specific issue as these authors have. So I invite them (and others) to issue corrections or rebuttals in the comments.

I will begin with Professor Grammond’s piece. As I read it, his approach identifies two limits on the power of Parliament to unilaterally alter the composition of the Court, and each are grounded primarily in different methods of constitutional interpretation. First, he suggests that Parliament cannot unilaterally alter “Quebec’s representation on the Court”, a restriction he finds grounded in a principle that is (as Sirota noted) thoroughly originalist: Quebec’s representation is considered amongst the “specific issues in respect of which there is cogent evidence that the framers of the 1982 Constitution intended to freeze the status quo”.

Prof. Grammond’s second limit is not originalist, as such, but what we might call “structuralist”: Parliament cannot unilaterally alter the court’s composition in a manner that undermines “the Court’s role as a final court of appeal and the Court’s independence”, or that otherwise effects truly fundamental changes to the institutional functioning of the Court. As I understand it, the problem with such changes is not necessarily that they defy any clear proscription in the language of the constitution, but that they undermine the core structure of the institution those provisions create.

As making bilingualism a condition of eligibility would offend neither of these limits, Prof. Grammond concludes that no constitutional amendment is required for that proposed change. He notes that this interpretation seems to run afoul of the Supreme Court’s ostensibly specific direction that any substantive changes to the eligibility requirements found in ss. 4-6 of the SCA constitute an amendment. In response, Prof. Grammond cautions us not to be too persnickety about each and every word or phrase in the SCA Reference; the judgment should not be read like a statute, he suggests, but rather in a more flexible, common law fashion.

I do not necessarily take issue with that, as a general proposition. My difficulty with Prof. Grammond’s argument is less that it requires some artful dodging around this or that particular clause in the judgment, but that it does not seem that the limits he proposes actually justify the holding in the SCA Reference. I think Prof. Grammond comes close to acknowledging this, in noting that the logic underlying that judgment did not actually explain “why someone in the position of Justice Nadon could not be said to represent Quebec adequately”.  I will return to this point in a moment.

Mr. Sirota takes a different interpretive tack, which I will describe as more “textualist” in nature. He criticizes Prof. Grammond’s use of the framers’ intentions as the appropriate constitutional lodestar, and failing to identify why some eligibility requirements alter the Court’s “composition” while others do not. It is not obvious to me from his short piece what Sirota himself thinks the word “composition” means, exactly, however based on the holding of the SCA Reference, he reasonably concludes that the Court has already determined what the word “composition” means, and it means those eligibility requirements set out in ss. 4-6 of the SCA.  As I understand the position, if composition includes eligibility requirements, as the Court plainly stated, then adding an eligibility requirement would require an amendment, just as much as removing one.

In a tightly argued response, Prof. Glover implies that Sirota, at least, is not asking the right question: the right question is not whether the precise form of those sections would change, but whether the proposed change is one of substance.  To Prof. Glover, the best reading of the logic of the SCA Reference is that it shields from unilateral change “only those aspects of composition and eligibility that are necessary to ensure the Court’s competence, legitimacy, integrity, and proper role and functioning”.

It seems to me that this approach is not originalist, or textualist, but some form of purposivm: what were the provisions designed to achieve, and what types of restrictions are necessary to achieve those ends? As their purpose is to ensure the Court’s competence, legitimacy, integrity, role and functioning, it is against these ends that we measure whether a unilateral amendment would be permitted. Prof. Glover finds that it would not, as a requirement of bilingualism would be a change linked to the “judicial competency and institutional integrity of the Court”.

As I see it, Prof. Glover’s dispute with Sirota is relatively fundamental: should the Court be looking to give the term “composition” a fixed and steady meaning consistent with past precedent, or looking at what objectives entrenching the Court’s “composition” were intended to achieve? By contrast, Prof Glover’s dispute with Prof. Grammond is less stark.  While for Prof. Grammond, the core purposes of entrenching the composition of the court are to protect the fundamental nature of the institution, including Quebec’s representation and the Court’s role as an independent, final court of appeal, Prof. Glover sees the purposes as slightly more demanding.

Truth be told, Prof. Glover’s analysis reads closest to the way I would expect the Court to approach the issue. I would however argue that Prof. Glover’s position is vulnerable to the same criticism as Prof. Grammond’s: it does not, in my view, adequately explain the holding of SCA Reference itself. Again, Prof. Glover’s constitutional analysis seems to hinge on what she views as the purpose of the provisions, not the specific way that those purposes have been put into practice (for instance, the precise criteria in ss.4-6 of the SCA). It is for this reason that she can argue that less substantive changes, such as to allow the appointment of advocates of at least 9 years standing at the bar of a province (instead of 10), would not require an amendment, although it would clearly require a change to ss. 4-6 of the SCA.

However, I think that in order for the SCA Reference to be correctly decided, the specific criteria in the SCA are critical, not merely the purposes underlying them. Indeed, the Court’s logic suggests that it did not matter whether the means chosen (i.e. the specific criteria) by Parliament would best achieve its purpose, or whether other criteria would meet them as well or better.  What matters was what criteria Parliament chose:

It might be argued that excluding former advocates of at least 10 years standing at the Quebec bar does not perfectly advance this twofold purpose because it might exclude from appointment candidates who have civil law expertise and who would in fact bring Quebec’s legal traditions and social values to the Court. In other words, it could be argued that our reading of s. 6 is under-inclusive when measured against the provision’s objectives.

This argument is not convincing. Parliament could have adopted different criteria to achieve the twofold objectives of s. 6 — for instance by requiring a qualitative assessment of a candidate’s expertise in Quebec’s civil law and legal traditions — but instead it chose to advance the provision’s objectives by specifying objective criteria for appointment to one of the Quebec seats on the Court. In the final analysis, lawmakers must draw lines. The criteria chosen by Parliament might not achieve perfection, but they do serve to advance the provision’s purpose: see Michael Plaxton and Carissima Mathen, “Purposive Interpretation, Quebec, and the Supreme Court Act” (2013), 22 Const. Forum 15, at pp. 20-22. [paras 57-58, emphasis added]

While this passage is found in the Court’s interpretation of ss. 5 and 6, the Court went on to find that the precise outcome of that interpretation was constitutionally entrenched, such that a rather minor change to the language of those provisions – so minor as to accord with what many plausibly thought those provisions meant in the first place – would thereby constitute a constitutional amendment.

Thus, if our guideposts are not the precise language and exact criteria in ss. 4-6 of the SCA, but rather the more broadly understood purposes behind them (such as “the requirement that Quebec be meaningfully represented on the Court”), then it is difficult to see how a change permitting the appointment of, say, a Quebec-born and raised francophone, who had 20 years’ experience at the Quebec bar and considerable experience in civil law, would substantively undermine meaningful representation for Quebec.  What it did, according to the Supreme Court, was something different: it offended the “specific eligibility requirements for appointment from Quebec” (para 105), which, I think, the Court equated with those specifically set out in the SCA.

Notwithstanding these reservations, I think there is much support in the SCA Reference for all of the positions put forward, particularly once we take Prof. Grammond’s caution and realize that the Court is not likely to consider itself forever hidebound by the precise holding in that decision. Indeed, if we take that caution and simply rely on accepted methods of constitutional interpretation, the odds are even more clearly divided.  All three of the arguments begin with entirely sound premises (one of many widely-accepted methods of interpretation), and follow them logically to perfectly defensible conclusions. That is to say, each argument is credible and compelling in its own right, notwithstanding that all three authors are looking for very different things and arrive at fundamentally different conclusions.

Perhaps this degree of quantum uncertainty is unavoidable in hard case like this. But I cannot help but think that if this is a problem, it is exacerbated by the Court’s jurisprudence, which sometimes resembles a buffet-line approach to constitutional interpretation, authorizing interpreters to pick or choose what method of interpretation they will follow and in what measure, and without any guidelines as to how to discard, reconcile, combine, or choose between the methods on offer. As judges are often fully liberated to determine what the question is, it may be hard to prevent them from arriving at their preferred answer.

Oliphant on Constitutional Interpretation

Announcing a guest-post by Benjamin Oliphant

Just a quick note to announce that Benjamin Oliphant, my esteemed co-author on two articles on the place of originalism in Canada and of many brilliant papers of his own (as well as a busy lawyer in his spare time), will shortly by posting his take on the discussion between Sébastien Grammond, Kate Glover, and yours truly regarding Parliament’s ability to require new Supreme Court judges to be bilingual by ordinary legislation. Mr. Oliphant focuses on the role of constitutional interpretation methods in this debate. I am very happy to host him, and grateful for his contribution to this conversation.