How to Be Good Neighbours

Sometimes, the soundness of a position only becomes apparent by comparison with the alternative. So it has been, for me, in the gun registry litigation, which has finally concluded this morning with the Supreme Court’s decision in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14. The majority finds that contrary to Québec’s claims, the federal government was entitled to destroy the long gun registration data it had accumulated while registering such guns was mandatory, regardless of provincial objections. The dissenters, for their part, would have held that the statutory provision requiring the destruction of the data is unconstitutional ― but that Québec is not constitutionally entitled to the data, whose fate must be settled by a political negotiation. The dissenters present their position as the more realistic one ― yet their proposed remedy is, in my view, so unpragmatic as to show that this position is unsound.

* * *

The majority, in terse reasons by Justices Cromwell and Karakatsanis, with whom the Chief Justice and Justices Rothstein and Moldaver agree, mostly relies on the principles of federalism ― understood, primarily, as a clear division of legislative powers ― and parliamentary sovereignty. The principle of co-operative federalism, which Québec invoked, can it the majority’s view serve

to provide flexibility in separation of powers doctrines, such as federal paramountcy and interjurisdictional immunity. It is used to facilitate interlocking federal and provincial legislative schemes and to avoid unnecessary constraints on provincial legislative action. [17]

But it neither amounts to a self-standing constraint on the exercise of legislative powers by either the federal Parliament or the provincial legislatures, nor “impose[s] a positive obligation to facilitate cooperation where the constitutional division of powers authorizes unilateral action.” [20] Furthermore, the province cannot invoke its reliance on or expectation of the continued existence of the gun registry. Parliament must remain free to abolish what it had previously created. The majority also concludes that provincial participation in the operation of the registry was limited and merely a part of the framework established by federal law.

The majority holds that the provision of the legislation abolishing the long gun registry which requires the destruction of the data was within Parliament’s legislative competence. As the creation of the registry was valid legislation in relation to criminal law, so must be its abolition, and so also must be provision settling the question of what is to happen to the now-unneeded data. The reasons that motivated Parliament to settle that question in the particular way it did rather than otherwise are irrelevant. Nor does a desire to make life more complicated, at a practical level, for the other level of government translate into a constitutionally cognizable harm:

[a]n intention on the part of one level of government to prevent another from realizing a policy objective it disagrees with does not, on its own, lead to the conclusion that there is an encroachment on the other level of government’s sphere of exclusive jurisdiction. [38]

Since Québec could not “validly enact legislation that deals with what will happen with the data of the repealed scheme,” [40] Parliament’s enactment of such legislation does not impede the exercise of any provincial powers.

* * *

In contrast to the majority’s, the dissenting reasons, jointly written by Justices Lebel, Wagner, and Gascon, with the agreement of Justice Abella, try to convey the impression of careful attention to the real-life background of the dispute. The dissent starts with a history of gun control in Canada, and includes repeated reference to the Polytechnique Massacre and the importance of gun control to Québec. It emphasizes the statements of various federal politicians (including the future prime minister Stephen Harper) and officials regarding the collaborative nature of the Canadian gun control regime. It also delves deeply into the mechanics of that regime’s operation, and details the ways in which provincial officials contribute information to and rely on its linchpin, the Canadian Firearms Information System database, highlighting the fact that, although legislation suggests that provincially- and federally-collected data ought to be distinct, they are, in reality, very much intertwined.

This leads the dissent to the conclusion that the long gun registry, as part of the broader gun control regime, is the fruit of a “partnership” between the federal government and Québec. This partnership “is consistent with the spirit of co‑operative federalism,” having

enabled the federal and provincial governments to work together, rather than in isolation, to achieve both federal (criminal law) and provincial (public safety and administration of justice) purposes. [149]

Upholding the principle of (co-operative federalism) thus requires “protect[ing]” such partnerships

both when they are implemented and when they are dismantled. It would hardly make sense to encourage co‑operation and find that schemes established in the context of a partnership are valid while at the same time refusing to take this particular context into account when those schemes are terminated. [152]

A legislature that wants to dismantle a partnership must “tak[e] into account the reasonably foreseeable consequences of the decision to do so for the other partner” [153] ― and so must the courts, when they consider the constitutionality of the resulting legislation.

The dissent’s final approach to the issue in the case still takes the form of a traditional division of powers analysis. It concludes that the “true purpose” of the provision requiring the destruction of the gun registry data without offering it to the provinces “is to ensure that the information on long guns can no longer be used for any provincial purposes.” [176] But because registration falls, fundamentally, under the provincial power over property and civil rights, this provision does too, and is thus, in “pith and substance,” not valid federal legislation in relation to criminal law. Nor can it be justified as ancillary to the broader, valid, exercise of the criminal law power resulting in the abolition of the registry. For one thing, it is not necessary, in order to abolish the federal registry, to refuse to hand over the data to the provinces; for another, in the context of the Canada-Québec “partnership,” the encroachment on the provincial powers is too serious to be justified as ancillary.

The dissent accordingly concludes that the provision at issue is unconstitutional, being beyond Parliament’s legislative powers. However, it also finds that Québec “has not established a legal basis for its claim to the data.” It is not the courts’ role to order the federal government to hand over the gun registry data. Rather, as the data are the “fruit” of a partnership, it is for the partners themselves to decide, as a political matter, how to dispose of them. The province, no more than the federal government, cannot make that decision unilaterally. Since they failed to make that decision at the moment of creating the partnership, they must do so now, by means of a negotiation.

* * *

As I mentioned at the outset, I believe that the majority has the better of the argument here. I find its argument that, since the province could not itself decide what is to happen to the data, the data’s destruction cannot be frustrating the exercise of a provincial legislative power compelling. By contrast, the dissent’s claim that Parliament is “encroaching” on provincial jurisdiction strikes me as unpersuasive. All that Parliament does is to make an eventual exercise of the provincial legislative power more costly (financially and, perhaps, though unlikely in this case, politically). The province is still free to act, so long as it is willing to pay the price. That might not be nice of Parliament but, as I will presently explain, I don’t think that Parliament is under a duty to be nice here.

Before doing so, I want to return to my point about the dissent’s proposed remedy. As I wrote after the oral argument, where Justice Wagner had floated his and his colleagues’ eventual proposed solution,

[d]eclaring a duty to negotiate might have worked (hypothetically of course) in the secession context, where the end point of a successful negotiation would be clear (i.e. a peaceful separation), although the details would need to be worked out. Here, the parties have an irreconcilable disagreement over what the end state would be (data handover or data destruction). What can they negotiate about?

It is striking that, at the conclusion of an opinion that presents itself as attuned to the political realities, a pragmatic rebuttal to a rather dogmatic majority judgment the dissenters propose a remedy that would utterly fail to solve the dispute before it and result in protracted, acrimonious, and ultimately futile negotiations. This is not pragmatism, but either naïveté or a rather cynical bet that, as the negotiations drag on and on, the current federal government will be replaced by one more favourable to Québec’s claims later this year. More importantly though, in my view, the dissent’s proposed remedy amounts to an acknowledgement that Québec’s claim was ultimately political, not legal. “Co-operative federalism” was an attempt to bridge the gap between the two, but even for the dissent, it was not enough.

Still, doesn’t the idea have some value? Shouldn’t there be, in a federation, a sense of good-neighbourliness preventing the two orders of government from exercising their powers in a manner which, though superficially legitimate, imposes serious costs ― something like the neighbourhood disturbances or nuisances of private law ― on each other? Well, perhaps. But there is an important requirement of good-neighbourliness that the majority opinion actually serves much better than the dissent. The majority’s reasoning means that both the federal government and the provinces are clear about their own, and the other’s, entitlements when they embark on a joint venture. If they go ahead, they know the risks. The dissent’s reasoning would only have served to generate confusion about who may do what, and under what circumstances. It is good fences that make good neighbours.

Beavertail Western

Suppose you are the sheriff of a remote town in the Wild West. John, the man who used to run town’s the saloon ― the only saloon within a hundred-mile radius as it happens ― passed away, and left the saloon to a son of his, name of Steve. However, unlike John, who was never fewer than two sheets in the wind himself, Steve is a teetotaller, and abhors the bottle. So he decides to close down the establishment ― not to sell it, but to close it down altogether, and smash the bottles to smithereens. And he told everybody who’ll listen without shooting him (which isn’t a great many people, but they talk, so word spread and you heard all about it) that the point is to make sure nobody will open another saloon anytime soon, so as to get the townsfolk to stop drinking already, repent their sins, and start living like decent, law-abiding citizens.

Now, just as Steve is about to embark on the bottle-smashing fun, a guy rides in and demands that he hand over some of the alcohol, so that he can open a saloon of his own. Not that he has a building, or personnel, or much of anything ready, but never mind that. And as Steve refuses, the stranger barges in and demands that you call up the posse and put the fear of God into that obnoxious moralizer.

Steve is telling you it’s his booze, and he’s entitled to do whatever he wants with it. The guy is telling you saying that by doing that, he’s preventing him from doing something that he is perfectly entitled to do ― opening up a saloon that is ― and that since he has no use for the stuff anyway, it’s just mean and in bad faith. So what do you do? Never mind the law. You are the law, and there’s no other to be had. You’re going on first principles here. If you think that Steve ought to hand over the booze this guy is demanding, you’ll tell Steve that he’s got to do it ― or else. Will you?

As you’re thinking about it, and maybe have even come to a decision, the guy reveals that he is Steve’s estranged brother Phil. You hadn’t recognized him, because he’d been away for a while, but now that he’s told you, you know it’s true. A brother. Family and all that. So, does that change your answer? And then Phil tells you that he’d actually helped John collect those bottles. Would ride around all day to buy the finest moonshine in the state and bring it to pops. Steve retorts that not only is Phil exaggerating the extent of his involvement, but John also paid him for what little work he did put in, and he’s got the books to prove it. Do you think it matters? Are you going to investigate just what Phil did and didn’t do, and whether he was compensated for it?

Over to you, Sheriff.

Public Interest in Litigation

I have already mentioned the lawsuit by Aniz Alani, who is trying to have the courts declare that the Prime Minister must advise the Governor General to appoint Senators, which the Prime Minster is refusing to do. The government has filed a motion to strike his application, which will be heard about a month from now. In this post, I want to address not the substance of his case, but on the way in which Mr. Alani has let the public follow the case, which I think is an example to follow not only for other public interest litigants, but also for the government itself.

In addition to using Twitter to publicize his challenge, Mr. Alani has created a sober but eminently usable website that explains his case, provides background information and updates and, perhaps most  importantly (at least from the perspective of law nerd), makes Mr. Alani’s submissions and supporting materials publicly available. Other litigants had made steps in that direction before but, to my knowledge, not as comprehensively or as well. For example, the Canadians Voting Abroad website about the challenge to the provisions of the Canada Elections Act disenfranchising Canadian expatriates after five years abroad looks like it was designed in the 1990s and, more importantly, is missing some crucial documents, such as the factums submitted to the Court of Appeal. (I should note that, technically, this case is not public interest litigation, since the applicants are asserting that their own rights are being infringed. However, they are quite clearly presenting themselves as acting on behalf of others, and not only on their own.)

And others still have done nothing at all. The Barreau du Québec, for example, seems to have no information about its challenge to constitutionality of the mandatory minimum sentences enacted in recent years. (This is all the more paradoxical since the Barreau does have an exhaustive list of its public positions outside the courtroom ― letters to ministers, submissions to Parliamentary commissions, and the like.) Rocco Galati, the scourge of s. 101 courts and their former judges, appears not to have a website at all, while that of his compagnons d’armes at the Constitutional Rights Centre Inc. is bereft of any information.

The reason I am writing about this is that while ordinary litigants, who go to court to assert or defend their own legal rights and interests, are perfectly entitled not to care about what the public knows about their cases, it seems to me that public interest litigants, who ostensibly pursue matters not on their own behalf but on that of the public at large or at least of some section of the public, are, in my view, in a different position. The public, it seems to me, has a right to know what it is that those purport to represent it are up to. And this right is, if anything, even stronger in the case of those representatives who have appointed themselves to that position.

As the Supreme Court has progressively liberalized public interest standing, public interest litigants have grown into a great, yet (almost?) entirely unaccountable force in the Canadian legal, and even political, system. As Mr. Galati’s example shows, and as Mr. Alani’s might yet show, they have the ability to upset the plans and policies of elected officials, and impose considerable change ― for good or ill ― on the institutions of government. Surely, this force owes the rest of us an account of its actions. Public interest litigants say, often quite rightly, that they act to uphold the Rule of Law. But one of the values of the Rule of Law is transparency. Mr. Alani is setting an example in this regard, and others should follow him.

Those “others” include, by the way, a type of outfit that is not usually thought of as a “public interest litigant,” but which in a very real sense is exactly that: the federal Department of Justice and its provincial counterparts (which I will refer to as the DOJs). The DOJs represent (a certain understanding of) the public interest by definition. They act in our collective names. They are given the right to intervene in constitutional cases. And so they too ought to tell the public what they are up to, at least in constitutional cases, and perhaps in others too. Obviously, many of their cases are of limited relevance to the public. I’m not sure exactly where the lines should be drawn, with what exceptions, and so on. I’d love to hear suggestions. But the general point, I hope, is clear enough. Insofar as governments are litigating public interest matters, they too should ensure that those members of the public who are indeed interested are able to learn more about what is being argued on their behalf and in their name.

Splitting a Baby

There came a Catholic school and a minister of education unto the Supreme Court, and stood before it. And the school said, “Oh my Lords and my Ladies, I am a private Catholic school, and am delivered of a programme for teaching a class on Ethics and Religious Culture through the prism of my Catholic faith. And when I besought the minister for leave to do so, he would not let me, though my programme be equivalent to the one he requires.” And the minister said, “Nay, but thy programme is no wise equivalent to the required one, for that programme is secular and objective, and thine religious.” Thus they spoke before the Court. Then the Court said (having deliberated a year, and with three of the seven judges present disagreeing), “Fetch me a sword.” And they brought a sword (a metaphorical one) before the Court. And the Court said, in Loyola High School v. Quebec (Attorney General), 2015 SCC 12: “Divide the programme in two, and give half to the one, and half to the other.”

More specifically, the majority (consisting of Justice Abella, who wrote the judgment, and Justices Lebel, Cromwell, and Karakatsanis) holds that while Loyola cannot be forced to teach its students about Catholicism from the rigorously secular and neutral perspective favoured by the minister, it can be required to teach the “ethics” element of the class from such a perspective. (Loyola itself does not object to adopting this posture for teaching students about other religions.) The majority orders the Minister to reconsider the denial of an exemption necessary for Loyola to teach the class according to its own programme rather than the one imposed by the Minister in light of its reasons.

This case was widely expected to produce a clear statement about the nature and extent of the religious rights of organizations under the Charter, since Loyola is a (non-profit) corporation. However, Justice Abella’s reasons seem to punt on that question, invoking instead “the religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education.” [32] Loyola was entitled to seek judicial review of the Minister’s decision, and in doing so to argue that the Minister failed to respect the rights of others.

Because the case arose by way of judicial review of an administrative decision, Justice Abella takes the approach developed in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, according to which the administrative decision must reflect a reasonable balancing of “the Charter protections — values and rights — at stake in their decisions with the relevant statutory mandate” [Loyola, 35]. But reasonableness, here, “requires proportionality” [38] and, indeed, is the exact counterpart of the (last two stages of) the “Oakes test” applied to determine the constitutionality of statutes.

Applying this framework, Justice Abella begins by pointing out that the statutory scheme under which the Minister operates makes provision for exemptions which must be granted to programmes “equivalent” to those designed by the government. This possibility would be meaningless, she observes, if “equivalent” were understood as “identical.” Besides, “[t]he exemption exists in a regulatory scheme that anticipates and sanctions the existence of private denominational schools,” [54] and, therefore,

a reasonable interpretation of the process for granting exemptions from the mandatory curriculum would leave at least some room for the religious character of those schools. [54]

In effectively requiring Loyola to teach the entire class, including the parts dealing with the Catholic religion itself, from a secular and neutral perspective, the Minister failed to make allowance for its denominational character. That decision

amounts to requiring a Catholic institution to speak about Catholicism in terms defined by the state rather than by its own understanding of Catholicism. [63]

Justice Abella finds that it would be possible to let the school teach its pupils about Catholicism in accordance with its own understanding of its faith without compromising the ministerial objectives for the Ethics and Religious Culture class. The Minister’s decision is, to that extent, unreasonable, because it not restrict religious rights as little as possible.

By contrast, Justice Abella finds that so long as Loyola is allowed to teach the Catholic religion and ethics from the Catholic perspective, it can be required to teach the remainder of the “ethics” part of the course “objectively.” While this may be “a delicate exercise” in the context of a denominational school, and “Loyola must be allowed some flexibility as it navigates these difficult moments,” [73] the requirement that it do so is not an infringement of anyone’s religious freedom, and does not compromise the school’s religious identity. Indeed, the requirement of objectivity is very important, lest

other religions … be seen not as differently legitimate belief systems, but as worthy of respect only to the extent that they aligned with the tenets of Catholicism. [75]

It is all about “how the discussion is framed” ― Catholicism’s “own ethical framework” must be a “significant participant rather than [a] hegemonic tutor.” [76]

The concurrence (a judgment by the Chief Justice and Justice Moldaver, with the agreement of Justice Rothstein) disagrees on with the majority about this, arguing that the teaching of ethics is inextricably linked to that of religions and, in particular, that the teaching of ethics generally cannot be neatly separated from the teaching of the Catholic perspective on ethics, as the majority’s conclusion would require. An attempt do so “poses serious practical difficulties and represents a significant infringement on how Loyola transmits an understanding of the Catholic faith.” [156]

On its way to this conclusion, the concurrence also takes a very different approach from the majority. For one thing, it squarely addresses the issue of institutional religious freedom, suggesting that corporations are entitled to assert this right “if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.” [100] And for another, the concurrence does not even pretend to apply Doré and its deferential standard of review, saying that

[t]he Charter requirement that limits on rights be reasonable and demonstrably justified may be expressed in different ways in different contexts, but the basic constitutional requirement remains the same. [113]

On this last point, I agree with the concurrence. The pretense of deference under Doré is useless if there really is no difference between “reasonableness” and “proportionality” as the majority suggests. Actually, I think that, contrary to what the majority suggests, there ought to be a difference. While it is true that the Supreme Court has often relaxed the Oakes test, allowing the government to infringe rights not by the “least restrictive means” possible but by one of a spectrum of “reasonable alternatives,” it has also repeatedly suggested that such a relaxation is not appropriate in all circumstances. And in cases where there is a real difference between “reasonableness” and proportionality” ― deferring to a government’s interpretation of Charter rights intended to constrain it is outright pernicious.

What I like less about the concurrence reasons is the way in which it limits the scope of organizations’ rights to religious freedom and, specifically, the requirement it proposes that only those organizations “constituted primarily for religious purposes” be entitled to assert this right. The concurrence does not explain why other organizations, including for-profit ones, should not be allowed to do so, at least if they can show that “their operation accords with” religious principles. The question was not before the Court in this case, and there was no need to answer it at all.

Whether the majority was right to evade the issue of the religious rights of even primarily religious organizations, I am not sure. Admittedly it is difficult to imagine situations where such an organization would not be able to assert the claims of at least some of the members of its “community,” as Loyola was in this case, so perhaps it is, indeed, unnecessary to answer that theoretically vexing question. But there is something to be said for theoretical clarity, at least on matters well and truly before the Court.

As for the outcome, I also agree with the concurrence. I find the majority’s belief that Loyola can plausibly separate the religious teaching of Catholic ethics and the “neutral” teaching of other ethics difficult to countenance. I am also perplexed by the majority’s professed concern at the “risk” that Loyola’s students won’t see other religions as “differently legitimate.” Of course they won’t. Religions are not politically correct. They don’t talk about people being “differently spiritually abled.” They talk of prophets, believers, and heretics. If you cannot accept that, you cannot accept religious freedom at all. Still, it could have been worse.

Perhaps it will yet be. The majority, and indeed the concurrence, repeatedly emphasize the fact that Québec’s legislation specifically provides for exemptions for classes “equivalent” to those required by the government, and that the government’s stated objectives for the Ethics and Religious Culture course can be achieved by classes taught, in whole or in part, from a religious perspective. But what if the provision for exemption is removed, or the objectives re-written ― a bit like Parliament criminalized (half of) prostitution after the Court seemed to make its legality a key factor in its analysis in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, where it struck down the prostitution-related provisions of the Criminal Code. As it happens, the King James Bible describes the women who came to seek the judgment of Solomon as “harlots.” I do not mean to suggest anything of the sort about either Loyola or the Minister of education, but this case might have an eerie air of Bedford about it.

All in all, then a rather unsatisfactory decision, and not a very well argued one. The majority’s reasons, in particular, are full of equivocation. Not only is the outcome a dubious compromise, but almost every step of the analysis is a fudge. Do organizations have religious liberty rights of their own? We’ll tell you later. The applicable test is “reasonableness,” but it’s no different from “proportionality.” Exemptions must be granted, but perhaps only if the law allows for exemptions in the first place. Schools must be allowed flexibility in structuring their classes, but here’s how to do it. The problem with splitting so many babies in half is that one risks looking more like Herod than Solomon.

UPDATE: Over at Administrative Law Matters, Paul Daly weighs in, mostly on Loyola‘s treatment of the relationship between constitutional and administrative law. Speaking of Justice Abella’s “application of the reasonableness standard, it is difficult to discern how it is more deferential than, or analytically distinct from, proportionality.” It is indeed. Shauna Van Praagh also makes some important observations in the Globe, although I’m skeptical about her proposal to “make the Loyola judgment part of the ERC curriculum in all its variations.” The judgment, for the reasons I set out above, does not strike me as a pedagogical model.

Rule and Exemption

Here’s something that has been bothering me since I’ve recently re-read the Supreme Court’s decisions in R. v. Morgentaler, [1988] 1 S.C.R. 30 and in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134. The two cases dealt with different topics: the former is about abortion; the latter, about a safe injection clinic for drug addicts. But the statutory regimes at issue in both had a similar structure ― a general prohibition (on abortion and on possession of drugs, respectively), coupled with the possibility of authorities granting exemptions from these general prohibitions. In both cases, the Supreme Court concluded that the general prohibitions engaged the right to the “security of the person” protected by section 7 of the Charter. But the way it determined whether the statutes were contrary to “the principles of fundamental justice” and this infringed section 7 was very different.

In Morgentaler, the majority of the Court focused on the operation of the statutory scheme and concluded that because the exemption granting process was over-complicated, long, and uncertain ― when it was available at all ― the scheme itself was contrary to the principles of fundamental justice. In the Insite case, by contrast, the unanimous Court had nothing at all to say about the way the exemption-granting process functioned (or, as the evidence perhaps suggested, did not function), and instead chose to review the Minister’s exercise of discretion within that process, which it found constitutionally wanting. Accordingly, instead of finding the whole statutory scheme invalid, it ordered the Minister to grant Insite an exemption. The equivalent decision on Morgentaler would have been to say that  every decision as to allow a woman who asked for an abortion would have to comply, and subject to review for compliance, with the Charter. Why the difference?

One reason that comes to mind is that both the activities at issue and the exemption-granting processes involved in the two cases were actually quite different. With abortion, time is of the essence ― delays in the exemption-granting process were not only psychologically distressing, but also increased the danger of the procedure for the women who were ultimately granted the exemption. And the decision on whether to grant one was made by committees of physicians, who presumably had little if any understanding of the relevant constitutional principles. More delay, including delay for judicial review, might be tolerable in the case of exemptions from drug laws, and the decisions are made by a government official who is, in theory anyway, supposed to be mindful of constitutional concerns.

Another possibility is that the two decisions were different because the two cases were argued differently and, in particular, because the evidence available was different. Morgentaler arose out of charges brought against doctors. It didn’t involve a woman who had applied for and been denied an exemption. The focus was accordingly on the way the entire statutory regime functioned, rather than on an individual application. And, importantly, there was a great deal of evidence about how the that regime worked for the many thousands of women (and their doctors) who needed to use it. Insite, meanwhile, was a challenge by a clinic that had applied for and been denied the exemption. There was a lot of evidence about the effects which that one decision would have on Insite’s users, but not about the way in which Ministers of Health handled the exemption process. Indeed, if I understand correctly, there could have been no such evidence, since Insite was unique.

Which is it, though? This isn’t just an academic question. If the second explanation is correct, then it is easy enough to imagine a challenge to the Canadian drug laws being framed to be more like Morgentaler ― an attack on the ministerial decision-making process itself. The government would presumably argue that the Minister is guided by and applies the Charter. But suppose that a few groups went through that process unsuccessfully and could show that Charter concerns were, in fact, ignored; or perhaps that the process just takes too much time and is too uncertain. It might not be an easy case to make, but it might be worth trying.

Of course, this brings to mind the further question, which Justice Wilson raised, but her colleagues in the majority refused to address, in Morgentaler ― whether any exemption process in ever constitutionally adequate. The Supreme Court’s decision in the Insite case suggests that it believes so. But if it can be shown that legalization would likely reduce “the health risks of injection drug use are caused by unsanitary practices and equipment, and not by the drugs themselves” (Insite, [93]), this would arguably amount to a difference in the available evidence that would, under the test developed in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 and Carter v. Canada (Attorney General), 2015 SCC 5, allow courts to revisit that conclusion.

Des fois, Boisvert a tort

J’avais beaucoup de respect, de l’admiration même, pour Yves Boisvert. Il est sans doute l’un des observateurs les plus perspicaces et les plus justes du système judiciaire et des enjeux reliés au droit dans les médias traditionnels. Il a fait preuve de sagesse et de respect pour la différence lors du débat sur la Charte de la honte péquiste. Pourtant, ces derniers mois, ces qualités semblent lui faire de plus en plus souvent défaut. J’ai déjà discuté ici de son attaque injustifiée contre les Cours fédérales, dans laquelle il insinuait que certains Québécois ne le sont « suffisamment », et de sa critique, tout aussi injustifiée, de l’ « Américanisation » du système judiciaire canadien qui résulterait de la nomination de quelques juges présumés « conservateurs ». Cette tendance à l’intolérance de la différence se confirme, hélas, dans la récente chronique de M. Boisvert dans La Presse+ au sujet du niqab.

M. Boisvert y défend la position du premier ministre Harper qui passe dernièrement son temps à pourfendre les femmes qui portent le niqab à leur prestation du serment de citoyenneté. M. Boisvert est d’avis qu’

 [u]n pays n’est pas « islamophobe » parce qu’il dit à ses nouveaux arrivants : le jour très solennel où vous deviendrez citoyens du Canada, vous montrerez votre visage.

Les raisons pour lesquelles M. Boisvert défend cette violation de la liberté religieuse ― et il est bien conscient qu’il s’agit d’une violation, lui qui « ne voi[t] pas comment on pourrait » interdire le port du niqab en public, comme certains pays européens l’ont fait ― ne sont pas exactement limpides. D’une part, pour lui, comme pour le premier ministre, le niqab serait problématique en soi. En cachant le visage d’une femme, dit M. Boisvert, le niqab « abolit son identité publique. Il est issu du fond des âges et promu par la frange combattante de l’islam radical ». Il serait apparenté à ces « pratiques barbares » que le gouvernement n’a de cesse de dénoncer. D’autre part, M. Boisvert semble avoir des préoccupations quant à la sécurité ou à l’identification:

pour témoigner à la cour ou dans une cérémonie de prestation de serment, pour être fonctionnaire, pour demander des services de l’État, on a le droit d’appliquer le « test de l’aéroport ». Montrez-vous, s’il vous plaît.

Or, cette préoccupation est mal-fondée. M. Boisvert reconnaît lui-même que « [l]’identité de la nouvelle citoyenne est évidemment vérifiée avant la prestation de serment », qu’elle porte le niqab ou pas. Il faut donc croire que c’est bien le premier argument, celui voulant que le niqab soit intrinsèquement problématique, qui explique la position de M. Boisvert. Pourtant, si le niqab est réellement une « pratique barbare », il m’est difficile de comprendre pourquoi on l’interdirait dans certaines situations et non dans d’autres. On n’interdit pas le mariage forcé seulement le jour où les parents deviennent citoyens canadiens, n’est-ce pas?

Cependant, au-delà de leur contradiction, ces deux arguments contre le niqab ne découlent tout simplement pas des de leurs prémisses. Le niqab est le fruit d’une « culture antifemmes »? Oui, sans doute. Sauf que comme l’a noté l’excellente Tabatha Southey dans le Globe and Mail,

[i]f women didn’t wear clothes that were “rooted in a culture that is anti-women,” we’d be naked. You can argue that the veil isn’t a choice, that Muslim women wear the niqab only because of cultural pressure and family. These are the only reasons I wear clothes in August.

Le niqab est-il promu par les islamistes radicaux? Oui, sans doute. Et alors? Les islamistes veulent aussi que les hommes portent la barbe. Devons nous raser tous les hipsters du plateau, pour les dépiter? L’important, me semble-t-il, n’est pas de savoir qui le promeut, mais qui le porte. Et la réponse et cette question n’est pas celle à laquelle MM. Harper et Boisvert voudraient nous faire croire. Par exemple, Zunera Ishaq, la femme à l’origine de la controverse actuelle, qui s’est récemment expliquée dans le Tornto Star, est une diplômée universitaire, impliquée dans communauté et porte le niqab malgré les souhaits de sa famille, et non à cause d’eux. C’est la mépriser que de prétendre la forcer à être libre ― être libre selon la compréhension que s’en font des hommes qui, en fait, cherchent à restreindre sa capacité de faire ses propres choix.

Remarquez, on n’est pas obligé d’être d’accord avec ces choix. Je crois, moi, que même s’il reflète un choix personnel, le niqab n’en est pas moins un symbole funeste. Je n’aime pas le voir. Mme. Ishaq dit que son niqab oblige les gens à aller au-delà des apparences pour interagir avec elle. Peut-être bien, mais c’est un effort supplémentaire que, dans la vie de tous les jours, on n’est pas tenu de faire.

Cela dit, il y a beaucoup de symboles funestes, et plus encore de symboles de mauvais goût, qu’on accepte dans notre société. Personne, à ma connaissance, ne songe à interdire les chandails à l’effigie de Che Guevara ou de Lénine, que ce soit lors de la prestation du serment de citoyenneté ou dans d’autres contextes. Ce sont pourtant, là aussi, des symboles d’une idéologie oppressive, meurtrière et destructrice. Comme avec le niqab, on peut très bien porter un regard désapprobateur sur les personnes qui affichent ces symboles. Or, désapprouver est une chose; interdire en est une autre.

Du reste, la société québécoise est loin de désapprouver tous les symboles de l’oppression. Comme je l’écrivais ici,

[p]ersonne ne s’empresse de renommer les rues Laflèche ou Bourget, disons, partout au Québec, pour ce que les évêques ultramontains ont fait, des décennies durant, à la démocratie. Ni la station de métro nommée en l’honneur de l’auteur de L’Appel de la Race. Oh, et le fameux crucifix installé par Maurice Duplessis, il est toujours à l’Assemblée nationale. Le paysage (symbolique) québécois est parsemé d’éloges d’un passé, pas si lointain, qui n’était pas si différent des fantasmes [des islamistes d’aujourd’hui].

L’indignation collective à laquelle se joint M. Boisvert est donc fort sélective. Elle n’en a rien à foutre de notre passé collectif ultramontain ou des conneries pseudo-révolutionnaires des enfants gâtés de notre bourgeoisie nationale, mais elle se déchaîne à la vue du niqab. Or le trait distinctif de ce symbole n’est pas d’être associé à une idéologie répressive, ce que d’autres symboles sont aussi, mais bien d’être associé à des gens différents de nous.

The Power of Google, Squared

I wrote, I while ago, about “the power of Google” and its role in the discussion surrounding the “right to be forgotten” ― a person’s right to force search engines to remove links to information about that person that is “inadequate, irrelevant or excessive,” whatever these things mean, even if factually true. Last week, the “right to be forgotten” was the subject of an excellent, debate ― nuanced, informative, and with interesting arguments on both sides ― hosted by Intelligence Squared U.S. I encourage you to watch the whole thing, because there is really too much there for a blog post.

I will, however, sketch out what I think was the most persuasive argument deployed by the opponents of the “right to be forgotten” ― with whom, admittedly, I agreed before watching the debate, and still do. I will also say a few words about the alternative solutions they proposed to what they agreed is a real and serious problem ― the danger that the prominence of a story about some stupid mistake or, worse, an unfounded allegation made about a person in search results come to mar his or her life forever, with no second chances possible.

Although the opponents of the “right to be forgotten,” as well as its proponents (I will refer to them as, simply, the opponents and the proponents, for brevity’s sake), made arguments sounding in high principle as well as more practical ones, the one on which the debate mostly focused, and which resonated most with me concerned the institutional arrangements that are needed to implement the “right to be forgotten.” The way it works ― and the only way it can work, according to one of the opponents, Andrew McLaughlin (the CEO of Digg and a former Director of Public Policy for Google) ― is that the person who wants a link to information about him or her removed applies to the search engine, and the search engine decides, following a secretive process and applying criteria of which it alone is aware. If the request is denied, the person who made it can apply to privacy authorities or go to court to reverse the decision. If however, the request is granted, nobody can challenge that decision. Indeed, if the European authorities had their way, nobody would even know that the decision had been made. (Telling the owner of the page to which a link is being delete, as Google has been doing, more or less defeats the purpose of the “right to be forgotten.”)

According to the opponents, this has some very unfortunate consequences. For one thing, the search engines have an incentive to err on the side of granting deletion requests ― at the very least, this avoids them the hassle of fighting appeals. One of the proponents, Chicago professor Eric Posner, suggested that market competition could check this tendency, but the opponents were skeptical that, even if users know that one search engine tends to delete more links than another, this would make any noticeable difference to its bottom line. Mostly, the proponents argued that we can rely on the meaning of the admittedly vague terms “inadequate, irrelevant or excessive” to be worked out over time, so that the decisions to delete a link or not become easier and less controversial. But another consequence of the way in which the “right to be forgotten” is implemented would actually prevent that, the opponents, especially Harvard professor Jonathan Zittrain argued. Since nobody can challenge a decision to delete a link, the courts will have no opportunity to refine the understanding of the concepts involved in the “right to be forgotten.” The upshot is that, according to the opponents anyway, the search engines (which, these days, mostly means Google) end up with a great deal of unchecked discretionary power. This is, of course, ironic, because they emphasize concerns about “the power of Google” as one of the reasons to support the “right to be forgotten,” as typically do others who agree with them.

If the opponents are right that the “right to be forgotten” cannot be implemented in a way that is transparent, fair to all the parties concerned, at least reasonably objective, and does not increase instead of the checking “the power of Google,” what are the alternatives? The opponents offered at least three, each of them interesting in its own way. First, Mr. McLaughlin suggested that, instead of a “right to be forgotten,” people should have a right to provide a response, which search engines would have to display among their results. Second, we could have category-specific measures directed at some types of information particularly likely to be prejudicial to people, or of little public interest. (It is worth noting, for example, that in Canada at least, we already do this with criminal court decisions involving minors, which are anonymized; as are family law cases in Québec.) And third, Mr. McLaughlin insisted that, with the increased availability of all sorts of information about everyone, our social mores will need to change. We must become more willing to forgive, and to give people second chances.

This is perhaps optimistic. Then again, so is the proponents’ belief that a corporation can be made to weigh, impartially and conscientiously, considerations of the public interest and the right to “informational self-determination” (which is, apparently, the theoretical foundation of the “right to be forgotten”). And I have argued already that new social norms will in fact emerge as we get more familiar with the internet environment in which we live, and in which our digital shadows are permanently unstuck in time. In any case,what is certain is that these issues are not going to go away anytime soon. It is also clear that this Intelligence Squared debate is an excellent place to start, or to continue, thinking about them. Do watch it if you can.