Twelve Banned Books Weeks

Once upon a time, I mused about whether Parliament could ban books as part of its regulation of election campaign spending. The specific question that interested me then was whether the exemption of “the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election” from the definition of “election advertising” in section 319 of the Canada Elections Act (CEA) could be abolished. But now, just in time for Banned Books Week, life ― or, rather, the Public Service Alliance of Canada ― has come up with a somewhat different censorship scenario.

La Presse reports that the Alliance has complained to Elections Canada about political commentator, consultant, and activist Éric Duhaime’s giveaway of 5000 copies of his book Libérez-nous des syndicats! (Free Us from the Unions!). Mr. Duhaime is apparently giving the books away for free in order to counteract an anti-Conservative (and pro-NDP) campaign by Québec’s largest union, the FTQ, to which the Alliance is associated. In the Alliance’s view, the anti-union book falls with the definition of “election advertising” in section 319, and since it is being away for free during the election campaign, the exemption for books sold “for no less than [their] commercial value” does not apply. Since Mr. Duhaime has not registered with Elections Canada to advertise as a “third party” as section 353 of the CEA requires, he is, the Alliance says, acting illegally.

Mr. Duhaime says that he is not campaigning for or against a political party ― only against unions ― and thus is not infringing the CEA. But that’s not quite obvious. The CEA deems to be election advertising

the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated. (Emphasis mine)

The key issue, it seems to me, is whether Mr. Duhaime’s book (which, to be clear, I have not read) can be considered as “tak[ing] a position on an issue with which a registered party … is associated.” Is the anti-union position Mr. Duhaime expresses “associated with” the Conservatives ― as the Alliance seems to believe? Or is the pro-union position Mr. Duhaime combats “associated with” the NDP? I’m not sure, but I don’t think that the argument is an impossible one to make. As best I can tell, there is no case law interpreting s. 319 generally or the notion of “an issue with which a registered party or candidate is associated” in particular. And these terms aren’t exactly self-explanatory.

Which, in my view, is a big problem. Here we have a statutory provision that can be applied to punish speech, to impose fines on someone whose “crime” is to give away a book ― and we don’t actually know what it means. Mr. Duhaime probably enjoys the free publicity that comes with the complaint, but not everyone will feel that way. The problem of chilling effect from speech-restricting legislation that is imprecisely worded and thus difficult to interpret in advance of application is a real one.

Here’s another issue with the drafting of s. 319, while we’re at it. One of the exemptions from the general definition of “election advertising” concerns “the transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views.” So suppose that Mr. Duhaime had put the text of his book on a freely-accessible website. That would pretty clearly fall within the exemption ― even if the website were only set up for the duration of the election campaign, since the statute says nothing about internet communications having to be “regardless of whether there was to be an election,” as it does for books. But now consider a somewhat different example. Suppose that, instead of just putting the text of his book on a website, Mr. Duhaime makes his book available as an ebook, say through the Kindle store ― again, for free. Does that count as an illegal “distribution of a book … for … less than its commercial value,” or as a legal “transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views”? I have no idea. On the one hand, it’s not clear that an ebook ought to be treated any differently from a dead-tree book. On the other, it’s equally unclear why a text in .azw, or .mobi, or .epub format should be different, for the purposes of election law, from the same text in .html format. I guess it would be a fun question to put on a statutory interpretation exam, if you are a slightly sadistic professor.

But again, laws that restrict expression, especially expression on political issues, should not be written for the benefit of slightly sadistic professors of statutory interpretation. If expression must be restricted, as the Supreme Court believes the expression of “third parties” ― that is citizens and organizations who are not candidates or political parties ― must be restricted, at least the restrictions should be clear and narrowly defined. Citizens should not have to guess; nor should they be at the mercy of complaints by other citizens or groups who simply happen to detest their politics.

The was once on the other foot. After the 2003 election campaign in Québec, another union associated with the FTQ was prosecuted by Québec’s election authorities for distributing a pamphlet criticizing a party that took an anti-union position ― a party whose leader Mr. Duhaime was then advising, as it happens. The union then challenged the constitutionality of the Québec legislation on third-party participation in election campaigns ― unsuccessfully. Now, it would seem, labour has learned to use this sort of law as a weapon against its enemies. (In fairness, however, Québec’s law was even more restrictive than the CEA. A union’s distribution of a pamphlet to its own members would not be a violation of the federal statute.) But we should, I think, be concerned that our election campaigns are in danger of becoming twelve-week-long periods for banning books.

The Swearing Show

Niqabs at citizenship oath swearing ceremonies are a big deal. Not really a big deal, mind you, because, as Radio-Canada reports, according to Citizenship and Immigration Canada, there have been exactly two women since 2011 who refused to go through with the oath because of the ban on the niqab which the government had illegally decreed. But politically a big deal. Yet while the niqab and the citizenship oath are the hot new celebrity couple of Canadian politics, all the attention is focused on the niqab, even though all that there was to say about it has already been said some time ago, by Emmett Macfarlane and by Tabatha Southey. If there was anything left to add, Andrew Coyne has added it. The oath, for its part, languishes in obscurity. I would like to remedy that.

You might think that focusing on the oath is a waste of time; that it is only a pretext for the Conservatives to score some political points by attacking the infinitesimal minority of Muslim women who wear the niqab. But why was this particular pretext chosen? After all, the same party is apparently uninterested by banning niqabs from the polling stations ― and yet you’d think that this would be at least as much of a bigot-vote-winner as banning them from citizenship oath ceremonies. So I think it is worth asking what is special about the oath.

There are two ways of seeing the citizenship oath. One is presented in the judgments of the Ontario courts that have upheld its reference to the Queen against a constitutional challenge by some anti-Monarchists who refused to swear “true allegiance” to Elizabeth II, her heirs and successors. The persons challenging the oath argued that the Queen symbolized inequality, privilege, and oppression. Not so, held the Superior Court of Justice in McAteer et al. v. Attorney General of Canada, 2013 ONSC 5895: “the oath to the Queen is in fact an oath to a domestic institution that represents egalitarian governance and the rule of law.” [65] For its part, the Court of Appeal for Ontario, in McAteer v. Canada (Attorney General), 2014 ONCA 578, held that the oath represented “a symbolic commitment to our form of government and the unwritten constitutional principle of democracy.” [62]

As I explained in a paper arguing that, contrary to the courts’ findings, the citizenship oath is indeed an unconstitutional violation of freedom of conscience, the other way of seeing the Canadian citizenship oath, as all loyalty oaths, is as an expression of the state’s fear of its new citizens’ disloyalty. I wrote that

if there is an implicit logic that can justify imposing the oath of allegiance on all would-be naturalized citizens, it is that they are all people whose commitment to Canada is doubtful (their decision to seek Canadian citizenship notwithstanding!), if not potential traitors. (158)

Otherwise, why is the oath even necessary? The government and the courts never answered this question (in part, one must admit, because the people challenging the oath did not dare ask it ― they accepted the principle of the oath unquestioningly).

To me at least, the role that the citizenship oath has come to play in the niqab controversy suggests that my jaundiced view of the oath is closer to reality than the courts’ optimistic one. If the oath were about equality, it would not be seen as an opportunity for singling out a minuscule unpopular group for legal retribution and public opprobrium. If it were about the Rule of Law, it would not be the occasion for bending legal procedures and ignoring legal advice in order to score political points. If it were about respecting our form of government, it would not be the scene of a blatant violation of the Canadian Charter of Rights of Freedoms. On the other hand, if what the oath really represents is a fear of the outsiders, of those who are different ― whether they think differently (like the anti-Monarchists) or dress differently (like the women who wear the niqab) ― and who are therefore said to stand against Canadian values and deemed disloyal despite the absence of any evidence of their disloyalty, then it makes a lot of sense for the oath to be treated in these ways.

We would do well, I submit, to ask ourselves again why exactly it is that we need an oath of citizenship. Mr. Coyne writes that “[n]o one else’s life is made the poorer because, somewhere in Canada, a women is swearing allegiance to this country with her face covered.” Nor are anyone’s rights infringed. That is true of course. But the same thing would be true if one simply became a citizen upon having satisfied a citizenship judge that one has met the legal requirements. The theatre of the oath-swearing can be dispensed with. The actors do not even understand their lines, and now we’re fighting over their costumes too. There are other shows in town more deserving of everyone’s time and attention.

Vote Did You Say?

I am finally beginning my promised series of posts arguing that we do not have a moral duty to vote. In this post, I address arguments in favour of such a duty based on the idea that elections are an information-gathering mechanism. When the information collected through elections is incomplete because some people did not vote, governance will be defective and likely skewed. To avoid these problems, everyone has to vote. Such arguments come in distinct flavours, and I will address two of them specifically, but they also suffer from common problems.

* * *

The first and perhaps more common version of the information-based argument in favour of a duty to vote is that by voting we provide those who look at electoral outcomes ― including, first and foremost, the politicians whose jobs depend on them ― with information about our needs and preferences. People who stay home fail to do that, and politicians ignore them in their decision-making as a result. Thus Susan Delacourt has written that “a disengaged public makes it easier to govern — or worse, ignore troublesome issues and constituencies (youth, for instance).” The tendencies of some groups not to vote, and the (alleged) tendencies of politicians to ignore their (alleged) interests as a result is a particular concern of those who favour this argument.

Jason Brennan has addressed this concern in some detail (he calls it the “demographic argument”) in a post over at Bleeding Heart Libertarians. The most important point he makes there is that “the argument seems to presume that voter[s] vote for their self-interest. But we have overwhelming empirical evidence … that they don’t vote their self-interest. Instead, they vote altruistically, for what they perceive to be in the national interest.” And while the people who do vote are likely enough to be mistaken about what is in the interest of those who don’t, people tend not to vote, and in particular “[t]he disadvantaged are much more likely to be mistaken in their beliefs about what it takes to help them,” (emphasis Brennan’s) because their levels of political ignorance are even higher those of the people who do vote. If these people vote out of a sense of duty, politicians might start taking their expressed preferences into account (though as I’ll explain below, that’s doubtful), but that won’t make them better off. A duty to vote will thus not make for better or fairer governance.

* * *

The other version of the information-based argument in favour of a duty to vote gets off to a better start, because it assumes that voters are indeed non-selfish. As Andrew Coyne has put it,

Voting isn’t like buying a soft drink. When you cast your vote, you aren’t just making a choice about you and your needs. You’re helping to make a collective decision about providing for everybody’s needs. The broader the sample of voters, the more representative of everybody it is likely to be — rather like the census — and the greater the combined stock of experiences and insights brought to bear. Conversely, if some “free ride” on others’ willingness to vote, the whole of the community suffers. You owe your fellow citizens your counsel, in other words. You benefit because they vote. You owe them no less in return — just as you owe them your share of the cost of public services.

The trouble with this reasoning (Prof. Brennan has called it the “public good argument”), is that the problem of political ignorance is even more acute for it than for the “demographic” one. If what we care about is collective wisdom, then some people ― especially, as it happens, people who tend not to vote, but also, in reality, a great many of those who do ― would actually help the community not by voting, but by staying as far away from the polling stations as they can.

Now, people who find this argument attractive will often say that the whole point of a duty to vote is that it will get people to become more engaged with and less ignorant about politics. Trouble is, as Prof. Brennan points out that, that “there are a bunch of empirical studies on this looking at various natural experiments, and the answer is no, compulsory voting doesn’t cause uninformed voters to become any better informed.” And it’s pretty obvious why this should be the case. Acquiring information relevant to voting is difficult. There is a lot to learn, both about the world and about what the politicians plan on doing to it. Learning takes time, energy, and ― a non-negligible point ― a willingness to confront “inconvenient truths” that make you uncomfortable with your prior beliefs. As Ilya Somin pointed out, it is “rational for most voters to stay ignorant, given the low chance that their knowledge will make a difference.” It is telling, I think that the defenders of a duty to vote mostly just say that it will spontaneously cause people to become better informed and more engaged ― not that there is in fact a duty to do so. They realize that, unlike the duty to vote, a duty to become a competent citizen is a very onerous one. (Of course, it is also possible to be an informed and engaged citizen without voting. I’ll develop this thought further in a separate post.)

* * *

The arguments and counter-arguments I have canvassed so far all presume that voting is a reasonably effective information-gathering mechanism. To think that voting tells politicians what the voters want or that it is a way of aggregating their wisdom about how best to run government, you need to think that it produces a relatively intelligible message, and also that politicians are able and willing to actually understand and act on this message. But these assumptions are unfounded.

Voting in an election is actually an incredibly bad way of sending any sort of message to anyone. It is a choice between, realistically, two or three options; perhaps a few more, depending on the voting system and the circumstances of each election, if you pretend that every candidate has a chance. And each of these few choices ― certainly each of the ones that have any chance of winning ― comes with a full panoply of policies (however vague) on all sorts of topics (however trivial), boasts about its leader’s character (however exaggerated), and insults for its opponents (however unfair). A vote can be based on any of these policies, boasts, or insults, singly or in combination. Or it can be based on whose name came first on the ballot, or some other utterly irrelevant consideration.

So how do we know what message a given set of electoral outcomes conveys? If, say, the Conservatives win on October 19, will it be because they hate the niqab, because Stephen Harper is the devil we know, or because Justin Trudeau is just not ready? That’s a trick question: nobody will know the answer. As Hans Noel explains in a very useful essay called “Ten Things Political Scientists Know that You Don’t,” “[t]hese narratives are created after the fact by people who want you to think one thing or another.” Even if the adage vox populi vox dei is true, an electoral outcome is no more than a Pythia’s mumbling ― to be interpreted by self-interested priests.

Things get even more muddled once we account for the possibility that people who show up at the polling station out of a sense of duty will not actually vote for anyone at all. Canadian advocates of mandatory voting tend to favour the inclusion of a “none of the above” option on the ballot. And those who believe that there is a duty to vote will typically say, like Mr. Coyne, that “[y]ou could … decline the ballot, or spoil it, or otherwise register your dissatisfaction with the choices on offer” ― you just need to show up. Needless to say, if you are voting “none of the above” or, a fortiori, if you are spoiling your ballot, you are not sending much of a message, whether about your own interests or what you think the country’s interests are. (By the way, Australia, a country from which the proponents of mandatory voting often say they draw their inspiration, does not have a “none of the above” option, and actually forces voters to rank all the candidates to cast a valid ballot. If both a Communist and a Marxist-Leninist are running in your riding, you need to say which you like more. Although there no Communists and no Marxists-Leninists in Oz. Their parties are actually much crazier than that.)

If you think that I just dislike democracy, or our version of it, you are mistaken. I share Churchill’s opinion that democracy is an imperfect political system, and indeed the worst one ― except all the others. I appreciate the blessings of political choice ― such as they are. I just don’t think that an electoral system’s purpose is to send any deep messages to the politicians or to anyone else. It’s to provide a mechanism for choosing people who will make decisions and, importantly, to ensure that the people in charge know that they are replaceable on relatively short notice, which tends to keep them somewhat honest. Our political system does that reasonably well. Pointing out that it’s useless at something it’s not meant to do is not a criticism at all.

There actually exists a much better mechanism for aggregating people’s preferences and putting their knowledge in common. Unfortunately, politicians tend to impede rather than support its functioning, and do their utmost to ignore its lessons even when these are clear. It’s called the market. (Nobody thinks, however, that a person is “free riding” on the market’s information-gathering by refusing to participate in it and thus contribute his or her “insights” about what the prices in that market should be.) Mr. Coyne points out that “[v]oting isn’t like buying a soft drink.” That’s quite true, but not in the way Mr. Coyne suggests.

As prof. Somin often says (sorry, I’m too lazy to track down a specific post for reference), when make market decisions, they have a strong incentive to become informed about the choices available and their consequences, because the decision they make will affect them a great deal. Voters lack this incentive, because the chance of a single vote affecting anything is very small. (That is true, by the way, under any voting system ― not just first-past-the-post.)

Moreover, the market allows for much more fine-grained decision-making than do elections. Getting a can of Coke in preference to a Pepsi doesn’t commit you to, say, buying an iPhone instead of a Samsung, and leasing a Ford car instead of just taking the bus. But voting does ― you cannot vote for, say, the Conservative policy on health transfers, the NDP policy on anti-terrorism legislation, the Liberal policy on marijuana, and none-of-the-above on kowtowing to the dairy cartel. Indeed, voting for a party is the equivalent of committing to Coke, Apple, and Ford for the next four years.

Again, that’s not to say that we should scrap voting altogether. The market isn’t the best mechanism for making every decision. But so far as information-gathering is concerned, it is greatly superior to voting. If we really cared about having as much information as possible about people’s preferences, and about maximizing the use of their individual knowledge for the public good, our governments would regulate less, and let the markets decide more. Instead, even when the market sends very clear signals, such as that many people prefer Uber to the taxi cartels, politicians turn a blind eye to these signals, unless they actually try to stamp them out by regulating even more.  Politicians, I conclude, are not actually interested in information, about what people want. They will say otherwise, of course, but actions speak louder than words.

* * *

Making the case for a duty to vote on supposed information-gathering properties on the electoral process is a perilous exercise, because elections are simply not are intended to aggregate information. They serve to choose Parliaments and, indirectly, governments. A vote does communicate much of a message either about a person’s own needs and preferences or about his or her views as to how the country ought to be governed. When you vote, nobody can tell what it is that you are trying to say. Besides, when people make their views clear in the marketplace, politicians tend to simply ignore them, or even try to eliminate the market’s information-gathering abilities. The information-based case for a duty to vote is not a persuasive one.

But, you might say, it’s not the real case for a duty to vote. Please stay tuned. I’ll address other arguments over the next few weeks. And if you’re worried that I might not address you personal favourite, please get in touch, and tell me about it!

Down with Hypocrisy, Again

Over at Democratic Audit UK, Mollie Gerver has an interesting post arguing that the European Union should decriminalize people smuggling ― that is, helping consenting individuals to cross borders which they lack permission to cross, in exchange for payment. (Consent is very important here: it’s what distinguishes “smuggling” from “trafficking,” the moving of people by force or fraud.) Having once written that Canada’s anti-smuggling laws are a form of organized hypocrisy, I agree. If anything, I would go even further than Ms. Gerver.

Ms. Gerver points that it is not illegal for a refugee to pay a smuggler, or to come to a country where he or she applies for protection. Even those whose applications for refugee status are denied are only deported, not punished. Smugglers, by contrast, face stiff criminal sanctions if they are caught, and this, Ms. Gerver explains, creates all sorts of perverse incentives. For example, smugglers “require extensive intelligence information to evade border control officials, which is often only possible by joining forces with those involved in arms trading and human trafficking networks.” Even worse, “[t]o avoid getting caught and arrested, smugglers often also take violent actions against migrants and refugees.” Moreover, because they face criminal sanctions whether or not they endanger the people they transport, smugglers are incentivized to carry as many people as they can, regardless of the risks, so as to maximize the profits.

Ms. Gerver proposes that smuggling be decriminalized, and that smugglers only face criminal punishment actions that are independently wrong, whether abuse or endangerment of the migrants, arms trafficking, or even “fraud if they fail to warn migrants and refugees about the risks of the journey.” In this way, smugglers will actually have an incentive to avoid, not to engage in, these sorts of behaviour. In Ms. Gerver’s view, such an approach would not be inconsistent with turning potential refugees away if they are intercepted before reaching safe haven, and generally with trying to reduce the number of those who reach their destinations and claim asylum. Indeed, she believes that “smuggling may also be easier to stop if decriminalised,” because smugglers might become “less nervous about being caught” once they know that they will not face sanctions if they are.

I’m not sure quite how seriously Ms. Gerver means her suggestions that decriminalization would be a way of reducing the number of refugees able to claim asylum in the West. I doubt that the suggestion is correct, because lowering the price of smuggling to those who engage in it will also lower the price their clients have to pay, and thus attract more of them, many more, I suspect, than would be stopped en route. Ms. Gerver might not think that this would be a good thing. But I certainly do. Indeed, I now believe, as I did not when I wrote the post linked to above, that states have no right to keep out any migrants, whether they are fleeing natural disasters, war, political persecution, or misery caused by the same sort of bad government that makes natural disasters into humanitarian catastrophes and causes wars and persecution. But you need not share this view to think that allowing more people who are genuine refugees as the term is generally understood to come to safety would be a good thing.

Indeed, you do not even need to believe that to want to change a policy that makes it more likely that refugees will be victimized by smugglers. To repeat, this policy is one of rank hypocrisy. We say that we welcome refugees, but actually we put barriers that not only make it difficult for them to come, but ensure that those who make the attempt are more likely to suffer or even die. That this barriers are invisible makes it worse. Ostensibly we protect vulnerable people from exploitation. In reality, as I argued in my earlier post on this topic, and as Ms. Gerver confirms, we create incentives for the smugglers to exploit them. To the somewhat more specific points Ms. Gerver makes, I would add the following, more general, one that I made in my earlier post:

[a]s with drugs, illegality ― created by the state ― reduces the number of willing sellers and increases the risks for which each of them wants to be compensated out of the price he charges. … But it seems quite wrong for the state to manufacture the conditions that give rise to the appearances of exploitation and then blame, and even criminalize, others for that exploitation.

The same situation prevailed with sex work under the legislative framework that the Supreme Court struck down in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. As I wrote in commenting on that decision, exploitation of sex workers by pimps is no small part a predictable consequence of the illegality of “living off the avails” of prostitution:

no law can make demand for protection of and assistance to prostitutes vanish. By criminalizing the supply that emerges to meet this demand, law makes supply more scarce, and therefore more costly, both in purely financial terms, and in the overall exactions the suppliers impose on their customers. An illegal activity inevitably attracts more “tough” ― read, abusive ― people than a legal one would.

Parliament was forced to change the way it regulated sex work after Bedford, but the new legal framework is, if anything, even more similar to that which applies to people smuggling, both in form and in effect. Only one side of the consensual  transaction, the one allegedly exploiting the other, is criminalized (in the case of smuggling, the supply; in the case of sex work, the demand), but the putative victim is endangered, and probably also stigmatized, as a result. It is hard to avoid the suspicion that, as with sex work and other activities considered reprehensible, regulations that ostensibly protect people from their ill-effects are actually meant to scare or disgust them out of engaging in these activities; or at least that, even if this is not the intent, the supporters of such laws really do not mind if they this effect.

The title of my comment on Bedford was “Down with Hypocrisy.” I still feel that way about the criminalization of sex work ― or of the demand for sex work. And I still feel that way about the criminalization of human smuggling ― or, to describe it less hypocritically, of remunerated assistance to people crossing borders that states had no business preventing them from crossing in the first place. Hypocritical laws enacted with, at best, a reckless disregard for the misery they cause do not belong on the statute book of any decent polity.

H/t: Michael Plaxton

A Bad Case

As promised, here are some thoughts on the Memorandum of Fact and Law that the federal government’s lawyers have filed in response to Aniz Alani’s challenge of the Prime Minister’s policy of not appointing Senators. (I had previously canvassed what I thought ― mostly, but not entirely, correctly ― would be the main issues in this case here, and commented on the Federal Court’s decision rejecting the government’s motion to strike here.) Full disclosure, before going any further: I have spoken to Mr. Alani about this case, and made some comments on the draft of his own Memorandum of Fact and Law. Whether this makes me biased, you be the judge.

The government makes four arguments for dismissing Mr. Alani’s challenge. First, it says that he does not deserve to be granted public interest standing to pursue it. Second, the claim is, in its view, non-justiciable, because it requires the court to enforce a constitutional convention. Third, even if justiciable, the issue is not within the jurisdiction of the federal court. And fourth, when it comes to the actual merits, the Prime Minister has “broad discretion” as to the timing as well as the contents of his advice.

Note what’s missing here: an actual claim that s. 32 of the Constitution Act, 1867 doesn’t require the appointment of Senators. It’s blindingly clear that it does, and much of the government’s argument is devoted to directing the Court’s attention away from this simple truth. That said, all truths are not to be told by courts generally, and by the Federal Court of Canada specifically, and the government’s arguments on justiciability and, perhaps especially, jurisdiction are serious, albeit presented in a rather misleading way.

The standing argument is more difficult to take seriously. The test for granting a person public interest standing (i.e. the ability to pursue a claim that has no impact on his or her own legal rights) is explained in the Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. There must be a serious justiciable issue ― a point that is treated separately in the government’s submissions (and presumably always will be if it is a live issue in a case, which makes me wonder whether it even should be treated as part of the standing inquiry). The claim must be a reasonable and effective means of getting the issue before the courts. This is normally the most contentious part of the test, but here, the government’s submissions have little to do with the usual inquiry into the existence of alternative ways of getting the issue litigated. They focus, rather, on the other element of the standing test, which asks whether the claimant has a genuine interest in the issue. The government makes much of the the fact that Mr. Alani hadn’t taken an interest in the question of Senate vacancies for any length of time before launching his application. In its submission, this makes him “a ‘busybody’ as the term is defined in the jurisprudence,” [39] a person who doesn’t really care about the issue, and thus undeserving of representing the public interest.

This argument is really beside the point, however. The policy of not appointing Senators is new and unprecedented. Nobody can have demonstrated a long-standing interest in it, because it did not exist, or at least hadn’t been publicly announced, until last winter. Mr. Alani became interested in it as soon as it was possible for anyone to do so. The government’s argument amounts to a suggestion that nobody can bring a public interest court challenge to an unconstitutional government policy for some undefined time after it is put in place, because doing so makes the claimant a “busybody.” This is absurd. As for Mr. Alani himself, right or wrong, he has made a difficult argument very seriously; he has invested a considerable amount of time and effort into it; he doesn’t just come to court with a vague sense of grievance; he has also, I have argued, taken his role as a (self-appointed) representative of the public with more seriousness than most public-interest litigants, or for that matter the government itself, tend to do. In the absence of any other, more effective, vehicle for getting the issue adjudicated, his challenge deserved to be addressed substantively, and not dismissed for lack of standing.

The government’s argument on justiciability is that Mr. Alani “seeks … judicial enforcement of the Prime Minister’s role in Senate appointments.” [45] Courts, according to orthodox constitutional theory, are not in the business of enforcing constitutional conventions, and thus they should not adjudicate Mr. Alani’s claim. Nor is the Supreme Court’s recognition in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, of the existence of a “constitutional architecture” enough to make conventions justiciable.

As I have indicated above, I think that the justiciability issue is a serious one, but not exactly for the reasons the government suggests. Indeed, I think that it is somewhat misleading to describe Mr. Alani’s claim as seeking the enforcement of a convention. Convention says that the Governor General appoints Senators on the Prime Minister’s advice, and not on his own initiative. It eliminates the discretion that the text of the Constitution Act, 1867 seems to give to the Governor General. If the Governor General decides to appoint Senators on his own, without waiting for the Prime Minister’s advice, and the Prime Minister tries to block those appointments, that would indeed be an attempt to enforce a convention. What Mr. Alani is asking for is something else. He wants the Prime Minister to be told that he must advise the Governor General ― not the Governor General to be told that he must follow the Prime Minister’s advice. The duty Mr. Alani is asking the court to enforce is not the Governor General’s, but the Prime Minister’s.

This is, admittedly, a novel claim, and it raises two issues: does the duty in question exist at all, and if so, what is its nature? Contrary to the government’s submissions, I think that the notion of constitutional architecture is pertinent here. The architecture of our system of responsible government involves an advice-giving Prime Minister (in some situations, including Senate appointments) and cabinet (in others). When the relevant actors are refusing to give advice to the Governor General, they are undermining this architecture. This is particularly so when the advice in question is necessary for the Governor General to legitimately perform a clear constitutional duty, such as the appointment of Senators. For this reason, I think that it is quite clear that the Prime Minister does indeed have a duty to advise the Governor General to make Senate appointments. And, while this is less clear, I think that taking the notion of constitutional architecture seriously requires us to conclude that this duty is indeed a legal one.

The federal government’s strongest argument, in my view, is the one about the jurisdiction of the Federal Court, which is only empowered to review decisions of bodies acting pursuant to an Act of Parliament or a Crown prerogative. The government contends that the Prime Minister, in his advice-giving capacity, is not such a body. The heart of Mr. Alani’s argument on this point is his submission that

[i]In the case of Senate appointments, the Governor General enjoys the Crown prerogative power to summon and receive advice from the Prime Minister. The Prime Minister, in turn, has jurisdiction to advise “by a prerogative of the Crown.”

The government’s response is that “[t]he advice is simply provided pursuant to a constitutional convention” [75] ― otherwise, it says, the advice would be binding on the Governor General.

I think this is a difficult question. On the one hand, it’s not obvious to me that if the Governor General has the prerogative to summon advisers and receive and advice (as he does), the advice he receives is given “by” that prerogative. On the other, I think the government is wrong to claim that the non-binding nature of the advice shows that it is strictly conventional in nature. Convention that makes the advice binding, but it does not follow from that that the advice itself is given pursuant to a conventional, rather than a legal obligation. Indeed, as I suggest above, I believe that the Prime Minister does have a legal obligation to provide advice on Senate Appointments ― but again, I’m not sure that this is enough to make this advice into one given “by a prerogative of the Crown,” rather than a duty directly imposed by the constitution, over which, as the government argues, the Federal Court would lack jurisdiction (so that Mr. Alani would have to bring a new case in a provincial superior court if he wants the matter adjudicated).

Finally, on the substantive issue in Mr. Alani’s challenge, the government argues that the remedy he seeks, namely a declaration that Senate vacancies must be filled “within a reasonable time” is too vague to be granted, and that there is no constitutional convention limiting the time a Prime Minister can take to recommend an appointment. The matter is one in which the Governor General (and, presumably, the Prime Minister) has a “wide discretion.” [89]

One thing that comes to mind in response is Justice Rand’s famous statement in Roncarelli v. Duplessis, [1959] SCR 121, that “In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator.” (140) The context is not quite the same ― we’re not talking about economic regulation or even administrative law, but the warning is apposite. The Governor General does, undoubtedly, have some discretion, perhaps wide discretion, in complying with s. 32 of the Constitution Act, 1867, because a Senate appointment is, or should be, a serious political decision which may reasonably take some time. But this discretion cannot be abused in every which way a Prime Minister thinks expedient.

And, once again, the government’s emphasis on (non-existent) conventions is rather beside the point. The issue here is not that some one vacancy has gone unfilled for too long. It is that the Prime Minister has announced a policy of not filling them at all. If the existence of a constitutional convention cannot overturn clear constitutional text, then surely the non-existence of a convention cannot do so either. Yet that is exactly the government’s contention: no convention specifies how quickly s. 32 must be complied with, therefore s. 32 need not be complied with at all. This too is absurd.

When a court finally reaches the merits of Mr. Alani’s claim, it ought to rule in his favour. The government’s substantive submissions are feeble ― not because its lawyers are bad, but because its case is. But whether the Federal Court is the court that can address the merits of this case is a difficult question, to which I am unable to suggest a definitive answer.

A Cost/Benefit Analysis of Judicial Review

I want to come back to the issue of judicial review ― both of legislation and of administrative decisions ― and deference, about which I wrote earlier this week. In that post, I suggested that our views on deference in judicial review are a function of our deeper beliefs on such principles as democracy and the Rule of Law, as well as on the institutional competence of the various branches of government, and that a coherent set of such beliefs could produce superficially inconsistent views about the degree of deference appropriate in various sorts of judicial review. I would like to expand on that idea, or perhaps just to restate it, in a way that I find helpful to clarify things: by means of a cost/benefit analysis.

Note that the following is likely to be boring, trivial, unoriginal, or simply stupid. It will certainly be exceedingly long. It’s an attempt to think some things through, out loud, and to invite constructive comments from those bold or kind enough to read it. (“This is rubbish” can be a constructive comment in this instance.) The claims I will make are tentative, and the terminology I use even more so. And I’m not sure what, if anything, follows even if everything I say here is right. This may well be a purely intellectual exercise. You’ve been warned!

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To state what should be ― but, I suspect, isn’t always ― obvious, judicial review is costly. Every legal procedure (and indeed any human activity) has costs of course, but judicial review is more costly than other forms of litigation, in a number of ways. Perhaps most fundamentally, all judicial review is in a real sense superfluous. Ordinary litigation is necessary in order to provide the parties with an authoritative determination of their legal position when that position is unknown or contested (though of course the parties may choose to forgo the benefit of an authoritative determination and settle their dispute by themselves, or turn to arbitration instead). But judicial review is not necessary to do this. The legal position of the party or parties involved has already been authoritatively determined, either by the legislature or by an administrative decision-maker. Judicial review is an attempt at overturning an already-existing authoritative determination. We could live without it ― and we do live without it in some areas. Judicial review has other unique costs too, to which I will return shortly.

The costs of judicial review fall into two general categories. I will refer to the first one as that of operational costs. The operational costs of judicial review mostly result from the diversion of resources ― people, their time and energy, and money ― to judicial review from more socially useful operations. (These more useful operations range from the practice of the sorts of law that is actually necessary to determine or to change the legal position of persons to the flipping of burgers, or anything in between.)

The operational costs of judicial review are of two types. Direct operational costs include of the resources actually expended on the litigation of constitutional and administrative cases ― the time of the lawyers who argue these cases and of the judges who decide them (instead of deciding other cases), the clients’ costs, etc. These costs also include the uncertainty about the validity of legal decisions, and thus about the legal position of persons, that persists while a case is being litigated. Indirect operational costs consist of the resources that are expended due to the existence of judicial review, but not on judicial review as such ― for example, the time that I spend on writing this post, and the time you expend on reading it, which might have been spent on more socially productive (if not more enjoyable!) activities if judicial review did not exist.

The other general category of costs of judicial review arises from the courts’ decisions; I will call them the decisional costs. One significant source of such costs is the democratic loss that occurs, most obviously, when courts invalidate legislation enacted by elected representatives of the people, and perhaps also when they invalidate decisions made by administrators whom these elected representatives entrusted with the making of such decisions ― though whether judicial review of administrative action really undemocratic is debatable. A somewhat different source of decisional costs of judicial review is overenforcement: the invalidation of statutes that are not actually unconstitutional or administrative decisions that are not actually ultra vires (or unconstitutional). The converse of overenforcement is arguably the over-legitimation of those statutes or decisions that are not invalidated. Legislators and administrators can see  and present their decisions being upheld as a sign of approval, an imprimatur, even though these decisions may still be not only unwise, but even morally wrong.

We can think of other decisional costs of judicial review as well, but these are more speculative. One example is the indifference to constitutional issues that judicial review is sometimes said to foster among politicians (who simply rely on courts to tell them whether what they do is constitutional). I suspect, as I explained here, that politicians do no better in those areas where judicial review is not available. Another cost of judicial review, according to some, is the erosion of precedent caused by constitutional adjudication. This argument, in my view, is interesting but overstated. Yet another possible but speculative cost is simply judicial self-aggrandizement.

Note, by the way, that almost all of the costs of judicial review are generated in much the same way by review of legislation and that of administrative decisions. It is only those I describe in the previous paragraph that seem to be unique to the constitutional context, and I’m not even quite sure that they are. And of course they might not be real costs to begin with.

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Of course, judicial review has a number of benefits too. The one common to all forms of judicial review is the enforcement of the Rule of Law, in the core sense that “government in all  its actions is bound by rules fixed and announced beforehand” (F.A. Hayek, The Road to Serfdom, Ch. 6). These rules include both the constitution, which binds the actions of the legislature as well as of the executive, and statutes and common law rules that bind the action of the administration. At least so long as the laws and administrative decisions invalidated on judicial review are unconstitutional or illegal more often than not, judicial review increases the government’s overall compliance with the Rule of Law.

Other benefits are specific to the various substantive categories of judicial review. Rights-based judicial review (whether of legislation or of administrative decisions) increases the legal system’s respect for individual and minority rights; federalism-based judicial review increases protects federalism (and thus democracy); review of administrative decisions for procedural fairness serves to protect the procedural aspects of the Rule of Law. Judicial review of legislation is also sometimes said to serve a sort of communicative function, educating the people about the constitutional values and commitments of their polity, but I am very skeptical about such claims.

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So how do these benefits compare to the costs of judicial review? Well, as I suggested last week, your answer to this question probably depends on the sort of judicial review we are talking about, because your assessment of both the costs and the benefits of judicial review probably varies depending on the circumstances ― and your legal culture and ideology.

On the cost side, you might think that some forms of judicial review, for example those involving complicated facts, have unacceptably high operational costs. Or you might think that some forms of judicial review are more likely than others to result in over-enforcement. For example, if you accept the post-New Deal consensus view of the “Lochner era” in American constitutional history, you think that overenforcement is likely to happen when courts review laws dealing with economic regulation and social policy. If you tend to view administrative decision-makers as experts and judges as amateurs, you are probably worried about overenforcement resulting from judicial review of administrative decisions. There are, of course, many more examples. And of course your assessment of the costs of judicial review depends on how you interpret and value democracy. If, like Ronald Dworkin, you think that rights-based judicial review is an integral part of a democratic political structure, you won’t view this type of review as having democratic costs; if, like Jeremy Waldron, you value decision-making by elected legislatures very strongly, your estimate of the democratic costs of all judicial review of legislation will be very high.

Your assessment of the benefits of judicial review similarly depends on your interpretation of the various principles judicial review protects, and the importance you attach to them. If you think that the Rule of Law requires legal rules to have a single meaning, and that it further requires courts, rather than decision-makers influenced by politics, to have the last word about this meaning, you will think that judicial review has considerable benefits. If you think that the Rule of Law can accommodate multiple meanings of legal rules, then judicial review is less valuable, quite apart from any concerns about overenforcement. Similarly, if you don’t think that federalism is an important constitutional principle, you will be skeptical of the value of federalism-based judicial review, even if you are not worried about it resulting in overenforcement and are unconcerned about its democratic costs. Again, there are of course many more examples.

How to balance the costs and benefits of judicial review is, of course, a difficult question. People are bound to disagree about it. They might disagree about the balancing even if they generally agree about things like the institutional competence of courts (and the attendant risks of overenforcement) and the interpretation of constitutional principles. But of course people also disagree about each of these things. The existence of widespread agreement about judicial review is almost puzzling ― but it is actually an illustration of legal ideologies at work. An ideology tells its adherents both how to interpret the relevant principles and which values to assign to them, and thus obviates the need for individual balancing ― and prevents disagreement.

The bottom line, despite these complications, is clear: if you think that, for a given type of case, the benefits of judicial review are greater than the costs, you favour judicial review. Otherwise, you want the courts to stay away.

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So how does deference factor into this analysis? It seems to me that deference, whether total or partial, serves to reduce both the costs and the benefits of judicial review. Deferential review is less costly than the non-deferential kind, though the reductions are not equal among the different forms of costs. Clearly, the decisional costs of judicial review go down as the degree of reference to legislatures or administrative decision makers goes up, since overenforcement becomes less likely, and deferential review is less undemocratic. Direct operational costs of deferential review should be lower too, at least in theory, because fewer cases will be brought when potential litigants know they are less likely to succeed due to a higher threshold for judicial intervention. In practice, it may well be the case that litigants will be undaunted at the prospect of a court that defers to government. Certainly the standard of review is not the only consideration that determines whether a litigant will turn to the courts. Indirect operational costs are not reduced by deference at all. Note, by the way, that it is possible that the very existence of a variety of standards of review introduces operational costs of its own, both direct and indirect, as litigants spend their time debating the amount of deference that should apply in their cases.

Deference also reduces the benefits of judicial review. Insofar as judicial review serves to uphold the Rule of Law, individual rights, federalism, procedural fairness, or whatever other substantive value, deferential review presumably accomplishes these objectives less well than aggressive review. Of course, one can think that, in a given area, courts are actually less good than legislatures or administrative decision-makers at upholding these values ― but then you should oppose judicial review in that area, and not merely argue for more deferential review.

Deferential review is thus a compromise. It is less effective, but also cheaper than the non-deferential sort. Importantly, however, there is no reason to believe that costs and benefits will be reduced by the same amount for a type of cases. Conceivably, costs will sometimes go down by a lot whereas the reduction in benefits will be more limited. This will not matter in those cases where the resulting balance of benefits minus costs will still be negative, making judicial review a bad idea. In other cases, however, deferential review will be preferable to the alternatives of either non-review or non-deferential review. Deferential review might also be attractive in those situations where the costs of non-deferential review are seen as intolerably high in an absolute sense, regardless of the benefits they can bring about. Deference can bring the costs down to an acceptable level, even if the benefits go down by as much or more.

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Well, there you are. I said this would boring and long, and so it was. I’ll have more exciting stuff, starting with a review of the federal government’s argument in Aniz Alani’s Senate vacancies case, later this week.

Must We Vote?

There’s exactly one month to go until election day. It’s as good a moment as any to announce a series of blog posts that I will publish over the next few weeks, to argue that, contrary to what is often said, there is no moral duty to vote or, in other words, that it is not wrong to stay home on October 19. I won’t be saying that you ought to abstain. If you believe that there is a candidate or party who will move the country at least somewhat closer to your policy preferences, by all means, go and vote for him/her/it. If you believe that there is a candidate or party who will move the country noticeably further away from your preferences than the others, then you should probably consider voting strategically to prevent this from happening. The claim I will be defending is that if you think that all the options on offer are roughly equally good or, more likely I suspect, equally bad, then you are under no obligation to vote for one them, or even to go and spoil your ballot.

I will be making this argument on grounds of political morality, not law. Of course, if there is no moral duty to vote, then it would be wrong for Parliament to require people to do so, as the Liberal Party, in particular, has mused about doing. On the other hand, even if there were a moral duty to vote, it would not follow that Parliament would be justified in using the threat of legal sanctions to force people to comply with it. Nor would it follow that the imposition of mandatory voting would be constitutional. The case for a moral duty to vote should be easier to make than that for the enactment of a law mandating voting. It is this easier case that I will address.

More specifically, I will address, in separate posts, a number of arguments I have seen made in favour of a duty to vote (or indeed of mandatory voting laws, which I take to presuppose the existence of a moral duty to vote). I have addressed one such argument a couple of months ago, when I argued against a claim to the effect that we must vote in order to honour and express our gratitude to the people who helped win and preserve the right to vote, whether against domestic opposition or foreign enemies. Over the next few weeks, I will address three other such arguments. One holds that we must vote because election results are useful information about the state of affairs in the nation, and we owe it, whether to our fellow citizens or to the politicians whom we elect, to do our part in generating this information. A second, perhaps somewhat similar, argument is that the existence of (and actual compliance with) a duty to vote helps improve the quality of election campaigns ― an improvement which we are in dire need of, and from which all would benefit. The third argument I will address is that it is necessary for us to vote in order to preserve the legitimacy of our democratic government.

Perhaps this list of arguments for a duty to vote is incomplete. If I am missing your favourite one, please let me know. I am open to expanding my post series, and even to changing my mind if you persuade me to do so. (Please do not tell me that we should all just vote for your favourite candidate, or against the one you particularly hate. I have done my best to keep this blog non-partisan, and remain committed to this position.) Feel free, as well, to suggest related topics that I might cover as part of this series. For instance, I will probably have a post on people who, far from accepting that they have a duty to vote, believe that they actually may not do so, even though the law says otherwise. And of course, I will have a post to respond to comments and criticism, if you are so kind as to provide some.

In short, I would like this to be a conversation, something like a slow-motion seminar maybe. Whether or not we convince each other in the end, at least the quality of our arguments on this topic, which is pretty sure to be much discussed after, if not before, election day, will hopefully be better as a result.