Keeping Time, Time, Time

The Supreme Court changes the meaning of the right to be tried within a reasonable time

A couple of weeks ago, the Supreme Court issued a very important, and fairly radical, decision on the “right … to be tried within a reasonable time,” which paragraph 11(b) of the Canadian Charter of Rights and Freedoms grants to “any person charged with an offence.” In R. v. Jordan, 2016 SCC 27, a divided Court overturned precedent and introduced presumptive caps on the amount of time that can elapse before a trial no longer takes place “within a reasonable time.” This decision raises significant questions about the judicial role, especially in the face of inaction by other branches of government.

Mr. Jordan, along with a number of others, had been charged with multiple drug offences. His trial concluded a little over four years later, two months of which he spent in prison, and the rest under restrictive bail conditions. The trial judge found that while Mr. Jordan was responsible for four months of that delay, the prosecution was responsible for two more, while the rest ― more than two and a half years ― “was attributable to institutional delay” [15]. However neither the trial judge nor the Court of Appeal accepted Mr. Jordan’s argument that the delay was an infringement of his rights under par. 11(b) of the Charter.  This was notably so because Mr. Jordan was facing other charges and serving a separate sentence, with conditions more or less equivalent to those of his bail, while waiting for his trial, meaning that his liberty would have been restricted even without the delay in this case.

* * *

The majority opinion, co-written by Justices Moldaver, Karakatsanis, and Brown, with whom Justices Abella and Côté concur, treats Mr. Jordan’s case as symptomatic of “a culture of delay and complacency towards it” [29]. The existing rules for the application of par. 11(b), which involved assessing the reasonableness of the delay in a given case in light of its length, causes, and impact on the accused are too complicated and vague, causing “its application [to be] highly unpredictable” [32] and subjective. A focus on the prejudice the delay causes to the accused misses some of the less tangible harms delay produces, not least those to the administration of justice as a whole, and devalues the right to a speedy trial. Finally, the existing rules are “designed not to prevent delay, but only to redress (or not redress) it” [35]. The “culture of delay” must change,

[a]nd, along with other participants in the justice system, this Court has a role to play in changing [it] and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time. [45]

The way in which the majority wants to play that role is by changing the applicable rules. As mentioned at the outset, the majority opinion introduces

ceiling[s] beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry), [46]

excluding any delay for caused or waived by the defence. The Crown can still show that exceptional circumstances outside of its control have arisen and that they explain ― and excuse ― a case taking longer than these timeframes, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but to do so they will need to demonstrate not only that the delay is “markedly” greater than reasonable, but also that they diligently sought to have the case heard sooner. (This test is reminiscent of that which Justice Moldaver applied in the Court’s recent decision in R. v. Vassel, 2016 SCC 26.)

The majority justified its decision by asserting that

[a] presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. [50]

In the majority’s view, its approach is simpler than the existing rules, and eliminates the undue focus on prejudice to the accused. The majority acknowledges that even the ceilings it imposes are “a long time to wait for justice,” but insists that they “reflect[] the realities we currently face,” [57] ― as reflected, it seems, in “a qualitative review of nearly every reported s. 11(b) appellate decision from the past 10 years, and many decisions from trial courts” [106] ― while cautioning that the Court “may have to revisit these numbers and the considerations that inform them in the future.” [57] Ultimately, the majority hopes that its approach “will help facilitate a much-needed shift in culture,” [112] including

by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible, and will be treated as such. [117]

In its conclusion, the majority adds that “[g]overnment will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.” [140]

Applying its approach (including a transitional framework for cases already in the system prior to its ruling) to the facts of Mr. Jordan’s case, the majority finds that the delays that afflicted it were unreasonable. In the process, it castigates the Crown for not having had a plan for bringing the matter to trial expeditiously, and for doing “too little, too late” when it became aware of the problem.

* * *

The Chief Justice and Justices Cromwell, Wagner, and Gascon do not disagree with this conclusion. They too are of the view that the delay in this case was unreasonable. However, Justice Cromwell’s concurring opinion is sharply critical of the majority’s approach to par. 11(b), which it calls “both unwarranted and unwise.” [254] While it accepts that some revisions to the current framework are in order, it rejects the imposition of fixed ceilings on acceptable delays.

Drew Yewchuk summarizes the concurrence’s approach and exposes some difficulties with it in a post at ABlawg. Here I will briefly sum up Justice Cromwell’s critique of the majority opinion. Justice Cromwell argues that the majority’s approach will not be as simple to apply as the majority hopes, because “[t]he complexity inherent in determining unreasonable delay has been moved into deciding whether to ‘rebut’ the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases.” [254]

As a matter of principle, the reasonableness of pre-trial delay “cannot be captured by a number; the ceilings substitute a right for ‘trial under the ceiling[s]’ … for the constitutional right to be tried within a reasonable time.” [147] Indeed,

The proposed judicially created “ceilings” largely uncouple the right to be tried within a reasonable time from the concept of reasonableness which is the core of the right. The bedrock constitutional requirement of reasonableness in each particular case is replaced with a fixed ceiling and is thus converted into a requirement to comply with a judicially legislated metric. This is inconsistent with the purpose of the right, which after all, is to guarantee trial within a reasonable time. Reducing “reasonableness” to a judicially created ceiling, which applies regardless of context, does not achieve this purpose. [263]

No foreign jurisdiction imposes numerical guidelines for speedy trials either. As for the majority’s approach to cases where trial is completed with the 18- or 30-month limit, it is “a judicially created diminishment of a constitutional right, and one for which there is no justification.” [264]

Each case must be decided separately, based on its own circumstances ― including, to some (limited) extent the prejudice to the accused, as well as society’s interest in the prosecution. The creation of definite ceilings is a legislative task, and it should be accomplished, if at all, by legislation. Besides, there is no evidence to support the majority’s approach, and it was neither put forward by any of the parties nor “the subject of adversarial debate.” [147] Nor was the majority’s assessment of the jurisprudence subject to scrutiny by the parties. The impact of its decision is unknown, but “[f]or the vast majority of cases, the ceilings are so high that they risk being meaningless,” thus “feed[ing] … rather than eliminat[ing]” [276] the culture of delay that the majority is concerned about, while for a small but significant minority, the ceilings risk proving too rigid, leading to stays being entered in the most important prosecutions.  

* * *

There are many questions to be asked about this case. They concern the constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. Since this post is already very long, I will only briefly address the first one here, and put off the other three to a separate discussion, which I hope will follow… in a reasonable time.

What I mean by the constitutionality of the majority’s decision is its consistency with the Charter’s text. The concurrence effectively argues that the constitutional text requires treating reasonableness as a standard and prohibits translating it into a bright-line rule. (Notice, though, that Justice Cromwell doesn’t quite put the point in this way: he says that the majority’s approach is inconsistent with “purpose of the right” ― consistently with the Supreme Court’s tendency to treat constitutional text as secondary, at best, to the “purposes” it is deemed to implement.) The majority, it seems to me does not make much of an effort to address this argument.

I am not sure who is right, to be honest. The idea of reasonableness does indeed normally refer to a standard, not a rule. But ― precisely for that reason ― the constitutional text that entrenches this standard calls for judicial elaboration or, as modern originalists would say, construction. In other words, the constitutional text itself does not give answers to the questions that arise in the course of adjudication. It must be supplemented by judicially-developed doctrines. The question is whether the courts can make numerical rules part of their doctrines. (And it really is only part; the majority is probably right to say that the concurrence somewhat overstates the degree to which the test a numerical one.) Or is it simply inconsistent with the meaning “reasonableness”? Again, I am not sure, but I do not think that the matter is as clear as the concurrence suggests. The fact that reasonableness requirements have not been construed in this way so far, in Canada or abroad, is significant, but hardly dispositive. It really is too bad that the majority does not address this issue.

In my view, however, the concurrence is pretty clearly right that the majority’s approach to cases that fall below its ceilings is a departure from constitution text. The text provides a right “to be tried within a reasonable time” ― not a right “to be tried within a time that is not markedly unreasonable provided that one has been diligent.” Presumably the majority introduce these additional requirements in order to incentivize defence counsel to contribute to the cultural change which it seeks. But while understandable, this motivation cannot justify an obvious inconsistency with the constitutional text.

That said, the issues of whether there can and ought to be a “ceiling” above which the burden of proof shifts to the Crown, and just what ought to happen below that ceiling, are distinct. It may be that the majority is right about the first even if it is wrong about the second.

All right. That’s quite unreasonable already ― for now.

What’s Constitutional Law, Anyway?

Understandings of what is constitutional law depend on time and place

Law is beset with definitional problems. Quite apart from the law’s struggles to define terms external to it, and translation difficulties, 2400 years after Plato, we can even agree about what law is. And it is similarly difficult to define specific legal categories and fields. The process of developing my New Zealand constitutional law class is a good reminder that the boundaries of the field to which this blog is devoted are, at best, a matter of contingent convention.

Speaking theoretically, I would define a polity’s constitution as the set of rules that structure its political institutions, define and limit their respective powers, and govern the relationships between them. Constitutional law is the subset of such rules that are also recognized as belonging to the realm of law, as opposed to, notably, that of constitutional convention (though I have been known to argue that the distinction between the two is an artificial and an untenable one). But this very broad definition, while I believe that it has the merit of logical comprehensiveness on its side, has little to do with how the field of constitutional law is generally understood by its practitioners, whether at the bar or in academia. Put another way, when we say “constitutional law,” we normally mean something narrower than the entire set of legal rules about political institutions.

For one thing, important swathes of law that fit within the general definition above are considered to be independent study areas. This is notably, the case of administrative law, which deals with decision-making by various governmental agencies and the review of their decisions by courts; municipal law, dealing with local government; and variously defined areas of legal study having to do with the procedures and organization of courts. So in practice, when we say “constitutional law,” we refer to those legal rules about political institutions that are not conventionally assigned to other subjects.

Beyond that, though, just what we mean, though, depends on just who “we” are. This becomes clear if you compare, say, constitutional law treatises from different jurisdictions ― even those that are in many ways “similar in principle,” as Canada and New Zealand are. Of course, there are important differences between the two, which help explain some of the differences. Unlike Canada, New Zealand is a unitary state, and so does not need to figure out whether elephants, and other weighty matters, are a federal or a provincial responsibility. New Zealand also does not have an entrenched constitution, meaning that it lacks our over-complicated amending formula and that its New Zealand Bill of Rights Act 1990 is an ordinary statute that cannot be invoked to strike down other legislation. New Zealand’s constitution also has features that Canada’s lacks, such as provisions for citizen-initiated referenda and a still relatively-new electoral system (MMP) which has caused some evolution in the workings of the cabinet. Still, as significant as they are, these differences do not explain everything.

The leading Canadian text, Peter Hogg’s Constitutional Law of Canada, consists mainly of extensive coverage of the provisions on the division of powers between the (federal) Parliament and the (provincial) legislatures, and of the Canadian Charter of Rights and Freedoms. Its other chapters ― on the sources and evolution of the constitution, on the courts generally and the Supreme Court specifically, on the Crown and on Parliamentary sovereignty, seem comparatively a minor matter. (Indeed, the Chapter on the Crown does not even feature in the Student Edition of prof. Hogg’s book.)

The leading New Zealand treatise is P.A. Joseph’s Constitutional and Administrative Law in New Zealand.  Some of its contents is similar to that of prof. Hogg’s book: there are chapters on the sources and the history of the constitution for instance, and one on Parliamentary sovereignty, though some subjects ― such as the Crown ― are treated in much more detail in prof. Joseph’s work. There is a chapter ― just one ― on the New Zealand Bill of Rights Act 1990, though it only deals with the Bill’s application provisions, and not with the substantive rights. But much of prof. Joseph’s book deals with subjects that do not make it into prof. Hogg’s: access to information legislation, for instance; the internal workings of Parliament, including its standing orders and legislative procedure; and the officers of Parliament ―including a (brief) discussion of Parliament’s restaurant and a (brief) section on the Mace!

These issues aren’t just accidentally missing from prof. Hogg’s treatise of course. In Canada, we tend not to think of them as falling within the scope of constitutional law at all ― we see them, it seems to me, as discrete areas of the law. This is, in some ways, unfortunate, because gives Canadian constitutional lawyers ― and I include myself in their number ― a somewhat blinkered view of the government’s workings and the ways in which it can be held to account. At the same time, I think it is perfectly understandable that, having federalism to worry about (and to complicate matters too ― prof. Joseph only needs to describe the operations of one Parliament; prof. Hogg would need to deal the more than a dozen, counting the legislatures of territories), and devoting a great deal of attention to the Charter, we lose sight of some other issues. The (shortened) student edition of Canadian Constitutional Law is as long as Constitutional and Administrative Law in New Zealand, and of course it doesn’t cover administrative law. (A note to my students at AUT: it also every bit as expensive. I sympathize with your having to buy a very pricey textbook but, if it’s any consolation at all, at least you get the whole thing, and you won’t need to buy a separate book for Judicial Review ― you are actually getting a better deal than your Canadian counterparts.)

Besides, there are arguably at least some issues that might have deserved to be treated as constitutional law that are missing from both the Canadian and the New Zealand accounts. Take the central banks, and the rules regarding their independence and accountability. These are critically important institutions of government, yet how many constitutional lawyers think about them at all? I’m as guilty of having this blindspot, and likely others, as anyone else of course.

So I do not mean that one approach is better than the other. I am simply trying to illustrate the point I made above ― that what we think of as “constitutional law” depends on the jurisdiction we are in, and more specifically both on the set of available rules that are constitutional in the broad theoretical sense, and on the legal culture of that polity. That culture, it is worth pointing out, evolves, so that even within the same jurisdiction, understandings of what is constitutional law change. As the late Rod Macdonald pointed out in remarks delivered at a conference to devoted to the Charter’s 25th anniversary,

[w]hen Albert Abel published the 900-page 4th edition of Bora Laskin’s leading casebook Canadian Constitutional Law in 1973, he left out the chapter on civil liberties that Laskin included in the 3rd edition on the grounds that the subject was not really constitutional law.

And by the time prof. Macdonald was speaking ― and still today ― the Charter had come to dominate the writing and thinking about constitutional law in Canada, and its teaching:

Few are the constitutional law teachers today who do not sacrifice their teaching of history, politics, institutions, practices, conventions and federalism on the altar of the Charter.

Fabien Gélinas, who taught me constitutional law at McGill, sacrificed less than just about any of his colleagues. Still, preparing to teach in a jurisdiction where institutions, practices, and conventions, are still the focus of constitutional law is an interesting, although challenging, reminder of the contingency of our own understandings.

Not Such a Simple Thing

A divided Supreme Court expands the powers of search incident to arrest

A couple of weeks ago, the Supreme Court issued a decision, R. v. Saeed, 2016 SCC 24, that was further evidence of its majority’s expansive views of the police’s powers of search incident to arrest ― and trust in judicially developed checklists to prevent the abuse of these powers. Meanwhile, by writing an opinion which, although concurring with the majority in the result, rejected its approach, Justice Karakatsanis confirmed her role as the Court’s leading ― if only in dissent ― privacy-protecting voice. To that extent, the case was a reprise of the Court’s earlier decision in  R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, where it considered the powers of the police to search an unlocked cell phone incident to arrest. (I commented on that case here.)

The issue in Saeed, was whether the police could conduct a penile swab on a man arrested on suspicion of sexual assault (or effectively force him to do it for them) in order to obtain the victim’s DNA ― without a warrant. In an opinion by Justice Moldaver, a seven-judge majority answered that question in the affirmative. Justice Karakatsanis disagreed, but would have admitted the evidence under section 24(2) of the Charter. Justice Abella dissented, endorsing Justice Karakatsanis’ approach to the main issue, but being of the view that the evidence was not admissible.

The friend of a victim of a brutal sexual assault having pointed to Mr. Saeed as the perpetrator, the police arrested him. Some time later, having concluded that a penile swab would potentially uncover useful evidence, the police placed Mr. Saeed, fully clothed, “in a dry cell, with no toilet or running water, to preserve the evidence. Mr. Saeed was handcuffed to the wall to prevent him from licking his hands or otherwise washing away evidence,” [18] for 30 or 40 minutes. Eventually, Mr. Saeed took the swab, under the direction of two male police officers, who were the only persons present. “The procedure took at most two minutes.” [25]

* * *

Justice Moldaver begins his reasons by asserting ― without much of an explanation ―  that “perhaps more than any other search power,” the “ancient and venerable power” of search incident to arrest “is used by the police on a daily basis to detect, prevent, and solve crimes.” [1] This power extends, he concludes, to the taking of a penile swab, although he “agree[s] that the common law power of search incident to arrest must be tailored to protect the enhanced privacy interests involved.” [42]

Despite the privacy implications, the taking of a penile swab is not, in Justice Moldaver’s view, analogous to that of a bodily sample ― which cannot be carried out as a search incident to arrest. The swab does not reveal information about the arrested person’s body ― it aim is to find the DNA of the complainant. It is also not particularly invasive ― or at any rate less invasive than the taking of dental impressions. Finally, the material it serves to collect can be removed quite quickly, whether deliberately or accidentally.

Justice Moldaver emphasizes the usefulness of collecting this material for prosecuting sexual assaults ― or indeed for exonerating an innocent suspect.  “This type of evidence,” he points out, “is highly reliable. It can be crucial in the case of complainants who are unable to testify, such as children, adults with disabilities, or those who have died or suffered serious injuries as a result of the offence or otherwise.” [59] For this reason, to require consent for a penile swab ― as the United Kingdom does ―  “effectively disregards the interests of victims of sexual assault … and all but ignores the public interest in bringing sexual offenders to justice.” [61] As for requiring a warrant, obtaining one takes time ― hours perhaps ― and thus involves “leaving accused persons to wait for an indefinite period in an uncomfortable and potentially degrading position,” “handcuffed without access to water or toilet facilities … in order to preserve the evidence.” [65]

Justice Moldaver cautions that a penile “swab must be truly incident to the arrest, in the sense that the swab must be related to the reasons for the arrest, and it must be performed for a valid purpose” [74]; that there must be reasonable grounds for conducting one; and that it must be conducted in a reasonable manner, to which end he supplies a list of 10 “factors” or guidelines, admonishing the police to proceed expeditiously, to explain the procedure to the arrested person, to respect his privacy to the extent possible, and to keep records. In Mr. Saeed’s case, the police acted consistently with these guidelines, and the evidence they collected is, accordingly, admissible.

* * *

As she had done in Fearon, Justice Karakatsanis takes a much narrower view of the power of search incident to arrest. She is much more concerned about the privacy interests of the accused, and more skeptical of the ability of courts to prevent abuses by supplying guidelines for the police.

For Justice Karakatsanis, a genital swab (notice, by the way, the gender-neutral terminology she uses, in contrast to Justice Moldaver) are no different from “mouth swabs, dental impressions and hair samples [which] cannot be taken as part of searches incident to arrest because they represent too great an infringement of bodily integrity and affront to privacy and dignity.” [99] Indeed,  “[a] swab of the genital area is far more damaging to personal dignity and privacy than a swab of the inside of the mouth or a pluck of hair from the head,” [101] and this is especially the case for a woman. That a genital swab doesn’t serve to collect information about the individual on whom it is conducted does not matter. The affront to the person’s dignity is the key consideration. However, whatever its purpose, “an effect of the seizure is to put the individual’s DNA in the hands of the state.” [104]

Justice Karakatsanis also notes that “if there is no lawful means by which the police could collect the evidence, ever,” ― and there may not be such means to collect the evidence yielded by a genital swab, as it is not clear that a warrant to collect it can be lawfully issued under the Criminal Code

it would not matter how long the evidence lasts.  Nothing would be lost when the evidence disappeared — no state interests would be compromised —because even if the evidence had survived, the police would have had no lawful authority to collect it. [108]

Further, Justice Karakatsanis argues that although it is not clear that it is actually necessary to handcuff a person in a dry cell in order to preserve the evidence while waiting for a genital swab, if it is,

this necessity could not be used to justify the greater affront to dignity that a genital swab would represent.  One indignity cannot justify another.  It would be ironic indeed if [section 8 of the Charter] did not protect individuals from the indignity of genital swabs precisely because it protects them from the indignity of detention in dry cells. [113]

Finally, Justice Karakatsanis is unconvinced that judicially developed safeguards can effectively protect the privacy interests of all those who may come into contact with the police ― and not only the subset of suspects who will be charged and thus have an opportunity to seek to exclude evidence against them. If Parliament wants to authorize genital swabs by statute, it can do so, but the common law power of search incident to arrest does not extend so far.

Justice Karakatsanis ultimately agrees that the evidence against Mr. Saeed should be admitted, because its admission does not bring the administration of justice into disrepute, not least because “the law on this issue was unsettled at the time of this seizure and the police acted on their understanding of the law.” [129] Justice Abella, who agrees with her section 8 analysis, does not agree with this and dissents.

* * *

For my part, I’m inclined to agree with Justice Karakatsanis. She is right that the distinction which Justice Moldaver draws between the swab at issue here and the taking of other bodily samples ― that the penile swab does not yield, or rather is not intended to yield, the DNA of the person on whom it is performed rather misses the point of the prohibition on taking bodily samples. I also think that she is right to focus on preventing unconstitutional infringements of privacy, and right that this is best accomplished by having clear prospective rules, and not lengthy checklist to be applied, if at all, by judges after the fact. Beyond these specific points, I am concerned by the expansion of the power of search incident to arrest ― including to cases where, as here, those searches take place many hours after the arrest, in the secure confines of a police station rather than in the unpredictable environment in the field. It hardly needs to be said that Justice Moldaver’s paean to that “venerable” power does nothing to soothe my worries.

I will end with a couple of thoughts about judging. It is sometimes suggested, in the heat of controversies about the judicial system’s handling of cases of sexual assault, that male judges systematically fail to empathize with the victims, leading to perpetrators getting off the hook. There is no denying that this sometimes happens. But Saeed shows that one should be careful with generalizations. Here, the Court’s five men sign on to an opinion overtly driven, in significant measure, by concerns about the difficulty of prosecuting sexual assaults. Two of the women members of the Court, by contrast, dissent from their approach, in the name of respect for privacy rights.

No doubt, a judge is influenced in part by his or her background and personal experiences. But that influence is surely more complex than a reflex that causes women to react in one way and men in another. Nor is background the only thing that influences a judge. Adjudication, even in cases involving sexual assault, should not be seen through the lens of a zero-sum battle of the sexes ― unless, of course, a specific judge gives us cause to do so in a specific case. Unless the evidence leads us to the opposite conclusion, we should treat judges as thinking human beings ― apt err sometimes, perhaps often ― but thinking all the same, and not mere automatons.

Yes Or No?

Post-Brexit thoughts on referenda, especially in the context of electoral reform

In the aftermath of the Brexit referendum, there is renewed debate about the lessons, if any, that it might hold for other democratic polities on the use of the referendum generally, and in particular for Canada about an eventual referendum on electoral reform. Many of those opposed to such a referendum have seized on the political ignorance and the acrimony on display in the United Kingdom to bolster their arguments. The problems they point to are real, but the case against a referendum on electoral reform is still not compelling.

First of all, it is important to note that the question of whether a referendum is the right way to settle a political controversy does not arise in a vacuum. If the issue has impressed itself with sufficient urgency on the public debate ― and in the Brexit case, this may be an open question ― it has to be resolved somehow. If not by referendum, then by a parliamentary vote. (Sometimes, adjudication or a reference to a court are also available, but not that often, so let’s discount that possibility here.) To say that a referendum is not the way to resolve the issue, it is not enough to point to that procedure’s flaws. It is also necessary to show that they are worse than those of the alternative. Moreover, it is not enough to point to one referendum that turned out badly (whatever “badly means), or to one successful parliamentary debate, to settle the question. Examples are useful, but to be persuasive, they have to be related to some underlying features that the procedures in question will usually, if not always, have.

Now, that political ignorance affected the Brexit vote, and would affect any other referendum, is not exactly a surprise. Ilya Somin discussed the data on political ignorance’s effects on the Brexit referendum in a detailed post at the Volokh Conspiracy, but those looking for a tl;dr can refer to this tweet from Google Trends showing that, after it was announced that the UK voted to leave the European Union, its residents started looking for answers to questions such as “what is the EU?” and what leaving it entails. Presumably, more than a few of these suddenly-curious people had cast their ballots without having any idea of what they were doing. There was also anecdotal evidence of “leave” voters having second thoughts after their preferred option turned out to have won. And given how little informed voters generally are, there is no reason to think that this particular referendum was an outlier.

There was also plenty of evidence of bitter divisions in the British polity in the aftermath of the vote. That too may be a feature of many referendums, though it’s not clear to me that it has to be a feature of all. I may be missing relevant information, but I do not know that New Zealand’s series of referenda on electoral reform was particularly divisive, and it is not at all obvious to me that a referendum on this topic in Canada would cause “deep divisions within Canadian … societ[y], divisions which [would not be] easily healed,” as Democratic Institutions Minister Maryam Monsef has implied. Referenda about issues seen as well-nigh existential, such as Québec’s future within or outside Canada, are divisive because the issues themselves are. Those about relatively pedestrian matters, such as the electoral system, are unlikely to be.

A referendum is thus highly likely to be affected by voter ignorance, and may, depending on the issue, prove dangerously acrimonious. But what about the alternative? As prof. Somin points out in a post asking whether “the Brexit vote prove[s] democracies should not use referenda,”

Elected officials may, on average, know more about policy issues than voters. But they need to cater to an often ignorant electorate in order to get elected in the first place. For that reason, policymaking by elected officials is often influenced by public ignorance no less than referenda are.

He adds that

In [an] election, there are many different issues on the agenda, which makes it hard for rationally ignorant voters to follow more than a small fraction of them. By contrast, a referendum can focus the voters’ attention on a single discrete question, thereby reducing the information burden.

And for divisiveness, it seems to me that a close election between two (or perhaps more) stark alternatives can be as divisive as any referendum, if we control for the importance of the issue. (Few elections are seen as being as vitally important as some ― though not all ― referenda.) The 2000 election in the United States left bitterness and division enough to last for two presidential terms and even beyond; and even the 2011 election in Canada left in its wake plenty of people who were convinced that the end times of Canadian democracy were at hand. Nor do I see a reason to see that ― again allowing for the significance of an issue to the public opinion ― having it debated in Parliament will turn out to be less divisive. As Andrew Coyne notes in a National Post column,

[r]eferendums are not themselves inherently divisive; rather, they are usually called precisely when the public is most sharply divided — so divided that the issue cannot risk being decided by ordinary means. If you think Quebec was divided during the two referendums on separation, try to imagine the mayhem that would erupt were the Parti Québécois to try to rip the province out of the country by a simple vote of the legislature.

In an op-ed in the Globe and Mail, Mel Cappe and Janice Gross Stein cite “the debate on the right to assisted death in Canada [as] an example” of enlightened parliamentarism, concerned at once “with interests of the majority” and “the rights of minorities.” But they conveniently forget to mention the fact that this debate only happened because of, and took place within the bounds defined by, a decision of the Supreme Court. Moreover, assisted death is an issue on which there seems to be, a fairly broad, if vague, consensus (though there is probably less agreement on the details than on general principles). If the debate in question was a relatively dignified one, that likely had a good deal to do with this consensus, and not only with the form it took.

There is another characteristic of parliamentary decision-making worth mentioning here. Not always, but more often than not, parliamentary votes are whipped party-line votes. If the leaders of the parliamentary majority decide that they want their caucus to vote a certain way, they will almost invariably get their way. In such cases, meaningful deliberation before a vote is a parliamentary ideal, but not a parliamentary reality. Thus, on an issue decided by party-line votes, parliamentary decision-making amounts to treating the last election ― in which that issue may well have featured only peripherally if at all ― as a sort of referendum-by-proxy on that issue.

So I don’t think that, as a general matter, referenda can be ruled out as a democratic decision-making procedure, as profs. Cappe and Stein suggest. At the same time, there issues that lend themselves to resolution by referendum much better than others. I am skeptical of arguments to the effect there that “constitutional,” or “very important,” issues, or those decisions on which are irreversible, should never be decided by referendum, not least because these categories are  vague and therefore liable to be twisted an abused in public debate. I have argued here that even the contention that issues of rights should not be put to a vote in a referendum is a dubious one. However, Prof. Somin has identified a couple of other factors that are more useful to draw the line.

First, prof. Somin writes that

referenda are often likely to be particularly poor mechanisms for making decisions on issues that involve complex tradeoffs with other priorities. … Legislators are more likely to have the time and expertise needed to study the tradeoffs in at least some detail.

Put another way, a referendum is only appropriate when it should be reasonably clear to at least a modestly diligent voter what each option involves. In a post on his (excellent) Public Law for Everyone blog, Mark Elliott points out that in the Brexit case,

[a] slim majority of those who voted may have expressed a desire to “leave”, but what that means is such an open question as to render the referendum outcome largely meaningless. … [T]hose who voted ‘leave’ … could not have been expressing, and did not express, any clear view about what the UK’s future relationship with the EU should look like precisely because no vision of that relationship was on the table.

The same was arguably true in the 1995 referendum on Québec’s separation. When one ― or more ― of the options on offer in a referendum is too vague, whether because it involves complex tradeoffs or because no one has bothered clarifying it, a referendum is not going to be a good idea. (It is worth noting, by the way, that this problem can affect elections if they are treated as referenda by proxy. As Emmett Macfarlane has been pointing out on Twitter, those who insist that Canadians want electoral reform because a clear majority of them voted for parties that supported it fail to mention that these parties were not very clear on what version of reform they favoured, and did not agree among themselves.) But if all the options are reasonably clear ― as they could be in a referendum on electoral reform, provided that the alternative(s) to the current system were actually specified in advance ― that objection is irrelevant.

Second, prof. Somin points out that

[r]eferenda might also be useful when it comes to issues where there is a serious conflict between the interests of elected officials and those of the general public. Most obviously, the former often can’t be trusted to deal objectively with issues that directly affect their own grip on power: electoral districting, campaign finance, and so forth. In such cases, the superior knowledge of politicians often actually does more harm than good, since they can use it to advance their own interests and the expense of the people.

This warning is relevant to the issue of electoral reform in Canada. Indeed, this should be blindingly obvious, given that every single party in the House of Commons (with the possible exception of the Bloc québécois) is supporting that electoral system which it believes will maximize its political power. Even profs. Gross and Stein concede that parliamentarians will “not always” have the best interests of the majority in mind. When we can tell that they do not, the case for a referendum becomes much stronger.

In my post on whether minority rights can be put to a referendum vote, I wrote that I was happy to live in a representative, not a direct, democracy. Many public decisions do involve such tradeoffs and uncertainty that resolving them by referendum is likely to be a bad idea. But that is not always true. In particular, it is not true of electoral reform. And sometimes, we can tell that our elected representatives are trying to help themselves at our expense. Again, that is true of electoral reform. When both of these factors are present at the same time, a referendum sounds like a very good idea. Let’s vote.

How To Do Constitutional Adjudication

Some thoughts on Asher Honickman’s take on the judicial role

As I mentioned in my previous post, I would like to respond to a number of points that Asher Honickman makes in a very interesting ― albeit, in my view, misguided ― essay written for CBA Alberta’s Law Matters and published at the website of Advocates for the Rule of Law. In the last post, I responded to Mr. Honickman’s critique of the Supreme Court’s jurisprudence relating to section 7 of the Charter. Here, I want to consider his approach to the role of courts more generally. Mr. Honickman, as I previously explained,

tries to chart a middle course between what he describes as “judicial supremacy” and “legislative supremacy” ― the views that, respectively, “when it comes to interpreting the Charter … more is better” and judges should expand the scope of its provisions accordingly, and that the Charter as a whole was a mistake.

I have considerable sympathy for the attempt, but I am not sure that it is successful. At a very general level, I have no quarrel at all with waht Mr. Honickman describes as “the common-sense proposition that the Constitution should be interpreted based on what it actually says, not what some might wish it would say.” The devil, as usual, is in the details.

One issue Mr. Honickman raises is the relaxation of the stare decisis principle in constitutional cases, whereby the Supreme Court is willing, as it explained in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, not only to reconsider its own precedents, but also to allow lower courts to do so in response to changes in the legal background or the “social, political and economic assumptions underlying” these precedents. This is indeed a valid concern. As Lon Fuller and other Rule of Law theorists point out, the law must be stable, because if it changes too easily or too often, people will understandably no longer pay much heed to it, and it will cease playing its role of guiding action. Yet against that, we must also consider the possibility that legal rules will cease commanding respect if they are understood to be based on legal, moral, or empirical foundations weak from the moment they were laid, or eroded over time. I am not quite sure what the right solution to this conundrum is. I am a bit skeptical, for instance, of the Supreme Court’s choice to allow lower courts to actually depart from its precedents, as opposed to merely suggesting that it do so on appeal. But there is certainly more to be said for allowing departures from stare decisis than Mr. Honickman allows.

Mr. Honickman is also concerned that judges venturing into the realm of moral issues and “social policy” will, on the one hand, make them appear to be political actors and lead to a politicization of judicial appointments, and on the other, deter legislators “from tackling politically sensitive issues, preferring instead to punt them to the unelected and unaccountable judiciary.” The flippant answer to this is that this particular ship has sailed a long time ago. The less flippant one is that law generally, and constitutional law in particular, contains an ineradicable moral and ideological element, so that there is nothing wrong with perceiving judges as being ― in part ― moral agents and political actors. Mr. Honickman wishes to remove morality, policy, and politics from section 7 jurisprudence, but even if he were successful in that, I doubt that he could eliminate them from, say, decisions about state neutrality and accommodation of religion under section 2(a) of the Charter, or reasonableness of police searches under section 8, or equality under section 15. For better and for worse, the Charter‘s text itself makes it inevitable that that judges will be making decisions touching on morality and politics.

Besides, as I have argued here, we know that even when it comes to non-justiciable rules, politicians can fail to take the constitution into account at all. Judicial circumspection in the interpretation of justiciable constitutional provisions would not help politicians grow a backbone and take constitutional rights and principles seriously. Mr. Honickman is right that legislatures have more resources to deal with issues of policy, and are more representative of the popular opinion on matters of morality, than the courts. Yet all too often they fail to make use of this advantage. What I have referred to here as “democratic process failures” ― cases of “persistent inability of that process to produce laws that majorities would agree with and find desirable” ― occur with some regularity in democratic polities, while political ignorance, which can result in elected officials ignoring issues altogether or addressing them in ways that serve their own interests rather than the electorate’s is pervasive. Arguments to the effect that courts should act this way or that because, if they do so, politicians will behave better reflect hope rather than experience.

None of this amounts to a suggestion that judges should approach constitutional cases in any particular way. As I say above, I share Mr. Honickman’s concerns about judicial subjectivity and about an inflationary interpretation of constitutional texts that divorces constitutional law from the rules that actually were enacted through the democratic process. Judges are not angels. They are human beings, exercising power over other human beings (whether in their individual or collective capacities), and this power should be limited and subject to law like any other. This law should indeed be stable ― but it should also not be divorced from reality, and how to balance these two constraints is a very difficult question. Morevoer, if judges are to interpret the constitution in accordance with what actually says and not what we wish it to say, as Mr. Honickman rightly proposes, then they should not shy away from making the moral judgments constitutional text requires. And while we err dangerously in regarding judges as angels, we err too in not noticing the less-than-angelic behaviour, or indolence, of our legislators. Our approach to judicial review of legislation, whatever it is, should account for these realities.

Seven’s Sins?

A response to Asher Honickman’s take on the section 7 of the Charter

In a very interesting essay written for CBA Alberta’s Law Matters and published at the website of Advocates for the Rule of Law, Asher Honickman discusses the role of the judiciary in constitutional cases, focusing on section 7 of the Canadian Charter of Rights and Freedoms. Mr. Honickman tries to chart a middle course between what he describes as “judicial supremacy” and “legislative supremacy” ― the views that, respectively, “when it comes to interpreting the Charter … more is better” and judges should expand the scope of its provisions accordingly, and that the Charter as a whole was a mistake. Mr. Honickman’s argument is both rich and well stated. It is also, in my humble opinion, largely misguided. Because it is both rich and concise, it does not lend itself to an easy summary. I would urge the reader to take his or her time to go through it. For my part, I will respond to some specific points Mr. Honickman makes, over a couple of posts. I will start here with his take on the past, present, and future of section 7 itself.

Mr. Honickman argues that the Supreme Court misinterpreted section 7 from the beginning of its engagement with it in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, expanding its scope well beyond the procedural issues to which it was intended to apply. More recently, the Supreme Court expanded section 7 further by recognizing principles of fundamental justice which not particularly fundamental or even particularly legal. Moreover, the Court unjustifiably relaxed the requirement that a section 7 claimant be “deprived” of the rights the provision protects, and accepted findings of deprivation, or infringement, based on “the indirect effects of the law [and] on contentious social science evidence.”

Mr. Honickman concedes that “[r]eturning now to the original meaning [of section 7] would be impracticable, as it would mean erasing more than thirty years of Charter jurisprudence.” He suggests, however, that section 7 be applied only in the context of the administration of justice ― if not to procedural matters, then at least when the impugned rules create an offence. Moreover, “the state action must amount to a real deprivation, which is a higher hurdle to overcome than mere infringement,” and the deprivation must be readily apparent by looking at the law’s “purpose and its immediate legal effects,” without recourse to social science evidence. Finally, principles of fundamental justice must not be added to without caution; in particular, the prohibitions on overbreadth and gross disproportionality are too vague and insufficiently capable of consistent application to qualify.

One of Mr. Honickman’s targets is the tendency of Canadian academics and activists to demand that section 7 be used by courts to force governments to provide all manner of goodies. For example, in Tanudjaja v. Canada (Attorney General), 2014 ONCA 852, the Court of Appeal for Ontario was asked to consider a claim that governments, both provincial and federal, were obliged to implement social programmes to help people access housing. The Court found the claim not to be justiciable, and refused ― rightly, as I have argued. To that extent, I agree with Mr. Honickman: section 7 is, and ought to remain, a shield to protect individuals from the state, not a sword to put to the throat of elected representatives in order to force them to spend money and enact regulations at the behest of interest groups.

Beyond that, however, I do not share Mr. Honickman’s views. I do not think, for instance that the issue of the original meaning of section 7 is as clear as he suggests. In our paper on whether the Supreme Court has actually rejected originalism as a method of constitutional interpretation in Canadian law, Benjamin Oliphant and I argue “that Justice Lamer’s reasoning in Motor Vehicle Reference [was] quite similar to the type of analysis that many (‘new’) originalists would support,” (22) given its close attention to the text and context of section 7. In particular, while Mr. Honickman thinks that Justice Lamer (as he then was) was wrong to ignore the meaning which courts had attributed to the phrase “principles of fundamental justice” in the Canadian Bill of Rights, that phrase was, as Justice Lamer noted, used in an explicitly procedural context in the Bill, rather than as a qualifier of a general guarantee of rights to life, liberty, and security of the person.

Nor am I persuaded that there is a very significant difference between “deprivation” and “infringement” of section 7 rights. A day’s imprisonment would, everyone would agree, constitute a “deprivation” of liberty, but is it really a worse imposition than years without the ability to take elementary precautions imposed by the Criminal Code’s prostitution-related offenses invalidated in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, as Mr. Honickman suggests? I don’t think so. What is, and what is not, a “deprivation” is arguably a matter of degree ― the term used by the framers of the Charter is vague. I agree that it should be taken to refer to somewhat serious interferences, but I’m not sure that the Supreme Court has ever done otherwise.

Nor do I think that we should be distinguishing between “direct” and “indirect” effects of laws whose constitutionality is called into question. Admittedly, as I wrote in my first comment on Bedford,

I think that the Supreme Court conceded too much when it accepted a low, and arguably meaningless, causation standard to find that the impugned provisions caused harm to sex workers. The violence and exploitation which prostitutes suffer are not just “sufficiently connected” ― whatever that means ― to the law. They are its entirely foreseeable consequences.

But while I believe that the Court ought to revise its formulation of the causation standard, I do not think that a notion of “directness” is very helpful. To repeat, the harms caused by the prostitution provisions that gave rise to the constitutional complaint in Bedford were arguably indirect, but real and foreseeable all the same. And while I have, ever since Bedford came out, struggled with some very significant problems that can arise when courts rely on, and indeed expect to be presented with, extensive social science evidence in constitutional cases, I do not think that courts should forswear the use of such evidence, because failure to understand the world in which their decisions apply can cause these decisions to be very badly mistaken.

Finally, I am not persuaded by Mr. Honickman’s criticism of some of the principles of fundamental justice identified by the Supreme Court. The prohibition on gross disproportionality is at least an arguable case ― it certainly involves a measure of subjectivity in its application. But that of overbreadth is a time-honoured legal principle. It is, for instance, a staple of the First Amendment jurisprudence in the United States. Of course, Mr. Honickman is right that identifying a law’s purpose is a somewhat subjective exercise, and that it can potentially be manipulated by judges acting in bad faith, or simply indulging in results-oriented reasoning. But the exercise is a fairly routine one, being at the heart of the application of section 1 of the Charter, and indeed of ordinary statutory interpretation. That it can be done badly does not mean it cannot be done well or should not be done it all. Excessive judicial enthusiasm at identifying principles of fundamental justice is a potential problem for the interpretation of section 7 ― I criticized, for instance, the B.C. Court of Appeal for having pronounced the independence of the bar such a principle, with far-reaching and in my view disturbing implications, though fortunately the Supreme Court did not follow its reasoning. Still, the same could be said of just about any constitutional right. I don’t think that that’s a reason to always construe such rights narrowly.

In short, I am mostly not persuaded by Mr. Honickman’s criticisms of the current section 7 jurisprudence, interesting though they are. While I  share many of his concerns about where that jurisprudence may be headed in the future, I do not think that the way to address them, or to prevent them from becoming reality, is necessarily to reject the current approach, and to narrow down the scope of arguably the most fundamental of all Charter rights. Whatever section 7’s sins, they are not mortal ones.



No, constitutional conventions cannot stop free trade within Canada

I didn’t write about the “Free the Beer” decision, R. v. Comeau, 2016 NBPC 3, when it came out this spring. It took me a very long time to read, and others beat me to it ― notably Benjamin Oliphant, to whose excellent analysis over at Policy Options Perspectives there is not much to add. There is one specific point, however, which concerns a pet peeve of mine, and which I do not think others have addressed, which in my mind justifies my doing so here, however belatedly. The point in question is the government’s argument that a constitutional convention meant that section 121 of the Constitution Act, 1867 ought not to be invoked to strike down legislation erecting barriers to inter-provincial trade.

Justice LeBlanc rejected this argument, just as he rejected the rest of the Crown’s submissions on his way to concluding that New Brunswick’s rules prohibiting the importation of alcohol from other provinces are unconstitutional because contrary to section 121. But although there is much to like about his decision overall, I think there is a bit more to say about this particular point than he did.

The Crown claimed, on the basis of an expert report by a political scientist, that the ever-evolving Canadian federalism had developed in such a way that

governments, rather than the courts, have taken on the lion’s share of responsibility for the management of the federation. This is accomplished in part by the courts’ recognition of constitutional conventions and by a judicious deferral to governments to maintain the balance of powers. [153]

One of the conventions in question is, according to the Crown’s expert, the “disuse” [169] of section 121:

governments do not use section 121 to challenge the protectionist policies of other governments. As such perhaps a convention has formed whereby section 121 is effectively rendered inoperative. [171]

The expert, moreover, saw section 121 as a sort of spent transitional provision, arguing that it is rather a convention that prevents the imposition of customs duties at provincial borders.

Justice LeBlanc responded by pointing out, quite rightly, that

[o]nce the Supreme Court of Canada strictly interpreted section 121 [in Gold Seal Ltd. v. Alberta (Attorney-General), (1921), 62 S.C.R. 424, as applying only] to custom duties, there was in reality nowhere else for the section to go. It strictly prohibited custom duties and nothing else. Its disuse became merely a matter of practice or custom. It was not possible for the section to be interpreted in any way to come to the aid of any other governmental policy or strategy.

In other words, Supreme Court precedent limited the scope of section 121 ― though it certainly did not abolish it, so that it is fanciful to claim that a constitutional convention has been doing the work that this provision has always done ― and it is for that reason that it was no longer invoked. That is true, so far as it goes, and it is understandable that a judge would say no more in the course of an opinion that is already quite long enough. But, as I noted above, there is more to say here.

It is worth pointing out that the Crown’s reliance on constitutional conventions in the course of an argument is a pretty remarkable thing. On an orthodox view, constitutional conventions are not enforceable by courts. The Crown analogized section 121 to the provisions of the Constitution Act, 1867 that enable the Governor General (acting on the advice of the federal government, of course) to disallow provincial legislation, which are rendered inoperative by a constitutional convention. Yet the Supreme Court expressed the view, in Reference re The Power of the Governor General in Council to Disallow Provincial Legislation and the Power of Reservation of a Lieutenant-Governor of a Province, [1938] S.C.R. 71, that these provisions were valid an in force as a matter of law. Similarly, in the Patriation Reference the Supreme Court said that conventions were not legal rules. So any attempt to invoke conventions as a sword rather than a shield (arguing that a claim should not be entertained because it asks the court to enforce conventions) faces an uphill battle, and indeed seems pretty desperate. It is telling, I think, that the Crown chose to make such an argument in Comeau.

Now, my own opinion is that the orthodox view that there is a sharp distinction between conventions and law is unfounded. Fabien Gélinas and I have suggested that, at least, conventions should inform the interpretation of the provisions of the written constitution. In a paper called “Towards a Jurisprudence of Constitutional Conventions”, (2011) 11:1 OUCLJ 29, I went further and argued that courts could actually treat conventions the way they treat common law constitutional rules, subject to justiciability concerns. While it is far from obvious that courts would endorse either of these approaches, and not very clear that the Crown in Comeau made much of an argument to show that they ought to, let’s assume that the court would have been bound to take a relevant convention into account in one way or another. Of course the question is whether there is such a convention here. Justice LeBlanc’s reasons suggest that the answer is “no.” But they ― understandably ― do not go into any detail on this point. A closer look shows that the Crown’s argument is completely off-base.

All constitutional conventions limit or eliminate he discretion that political actors seem to enjoy pursuant to other constitutional rules. For example, the law of the constitution leaves the sovereign with the choice to assent or not to bills that have passed the House of Commons and the Senate, but convention eliminates this discretion. The sovereign must assent. Geography does not figure among the criteria which the Supreme Court Act provides for the appointment of Supreme Court judges, other than those from Québec, but convention reduces the government’s discretion as to the advice it gives the Governor General by supplying additional geographic requirements.

What about the alleged convention here? The Crown’s expert points out that governments have refrained from suing each other on the basis of section 121. But even if that forbearance could be said to have acquired the status of a conventional rule, this convention could apply to governments ― the political actors whose behaviour contributed to the alleged rule’s emergence ― and only to governments. Not to citizens. To repeat, conventions stipulate how political actors exercise discretion. They do not dictate the behaviour of citizens. So while a convention may in effect nullify constitutional provisions that only empowers a political actor, such as those dealing with the disallowance power, they cannot “render[] inoperative” provisions that confer rights on citizens.

The Crown’s argument assumes, without even attempting to demonstrate, that section 121 is a provision that only concerns governments. But the assumption is unwarranted, and indeed galling. Constitutional provisions limiting the power of governments, such as section 121, exist in order to preserve the liberty of the citizens. In Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31, Chief Justice Rinfret wrote that even if Parliament and the legislatures agree to modify the constitutional division of powers by resorting to delegation, they cannot do so, because

[t]he constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. (34)

As the Chief Justice pointed out,

[i]t is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislate exclusively on the subject matters referred to it by section 92. (34)

But another part of that protection, of course, is that when the constitution removes a legislative power from both Parliament and the provinces, neither can arrogate such a power to itself, even with the connivance of the other. This is true of the power of constitutional amendment, for instance, and of the violation of Charter rights. And it is equally true of section 121. Were a court to accept to Crown’s (un)conventional argument to the contrary, it would transform the Canadian constitution from protection of the citizens’ freedom into a plaything for governments intent on limiting that freedom.