Don’t Blame the Courts

Critics of judicial review of legislation, such as Jeremy Waldron, argue that judicial invalidation of democratically enacted laws often occurs in the realm of reasonable disagreement. Perhaps we have a moral right to assisted suicide; perhaps not; it’s a difficult question and we can disagree about the answer ― and it’s not obvious that in the event of disagreement, a court’s view ought to prevail over that of the legislature. Defenders of judicial review like to point to the numerous occasions on which the “political branches” of government ― that is, the legislature and the executive ― act in ways that cannot sensibly be supposed to be constitutional, and indeed with very little thought to the constitutional issues that their actions may raise.

Some critics (though not, I believe, prof. Waldron) respond by suggesting, more or less explicitly, that the politicians would act more responsibly ― that is to say, they would take the constitution more seriously ― if they did not know that their decisions would be subject to revision by courts. It’s not an inherently implausible view, and indeed I have been attracted to it on occasion. But recent events surrounding the Senate have provided something of a natural experiment that sadly suggests that this view is mistaken.

The courts normally have no say over whether a person is eligible to be appointed to the Senate (except, that is, unless the question is asked by way of reference to the Supreme Court, which is how the “Persons case” started). The question is, in the first instance, for the Prime Minister to answer prior to an appointment, and eventually, pursuant to s. 33 of the Constitution Act 1867, for the Senate itself to settle. As for the question of whether any Senate appointments have to be made at all, it may yet be answered by the courts, but the government itself is adamant that it is not justiciable, and thus falls to the Prime Minister to determine. The way these questions have been handled of late, and may well continue to be handled in the future, discloses no concern with the constitution.

We now know that the Prime Minister brushed aside legal advice regarding the meaning of constitutional residency qualifications for appointment to the Senate. His own view that the residency qualification of par. 23(5) of the Constitution Act, 1867 was, in effect, subsumed into the property qualification of par. 23(3) prevailed ― without any explanation ― over his own lawyer’s cogent observation that the existence of two separate provisions meant that the two requirements were distinct. Moreover, as Adam Dodek points out, the Attorney General, part of whose job description is to advise the other government members of legal and constitutional matters, and who can rely on a staff of dedicated (and often very bright) lawyers to help him give this advice, was not consulted at all when the Prime Minister was engaged in this exercise of constitutional interpretation. And the Senate itself, ultimate arbiter of its members’ qualifications, never got around to addressing this question ― seemingly because the good people in the Prime Minister’s office decided that it was unnecessary and inexpedient.

All that, of course, was back when the Prime Minister was still fulling his constitutional responsibility to have Senators appointed at all. He no longer is. Whether he has some up with some specious constitutional interpretation that purports to justify this policy, we do not know, since he has not told us. His publicly offered justifications ― it saves money for the treasury! ― have nothing to do with the constitution. The policy of the Leader of the Opposition is the same, and his justification too ― he claims that denying provinces their representation in the Senate will make them agree to his plan to abolish the Senate altogether ― has nothing to do with constitutional interpretation.

All that to say that, left to their own devices, politicians take the constitution no more seriously than when they act under adult judicial supervision. Actually, they do not care about it at all. To be sure, the courts are sometimes no better. But such cases are, on the whole, aberrations. In politics, blithely ignoring constitutional commands seems to be a perfectly normal thing. Don’t blame the courts for this.

What the Judge Googled for Breakfast

A recent decision of an American appellate court provides a vivid illustration of the complexity of the issues surrounding the courts’ treatment of scientific information that I have been blogging about here. The case is a prisoner’s suit against the medical staff at his prison, alleging that their refusal to let him take medication against reflux oesophagitis prior to his meals ― rather than on a schedule seemingly arbitrarily determined by them, or indeed at all ― amounted to cruel and unusual treatment. In Rowe v. Gibson, a divided panel of the federal Court of Appeals for the 7th Circuit dismissed the defendants’ motion for summary judgment in their favour. The main opinion, by Judge Richard Posner, is most interesting for its liberal citation to online sources not in the record ― and for addressing directly the objection’s to this practice.

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The defendant doctor, who apparently doubled as an expert witness (despite not being specialized in the sort of medical problems the plaintiff was suffering from), claimed that it did not matter when the plaintiff took his medications. Indeed, at some point shortly after the plaintiff sued, he came to the conclusion that it did not matter whether the plaintiff took his medications at all, and so refused to prescribe them ― though he relented a month later, as a “courtesy” to the plaintiff. (A particularly gruesome detail: the prison authorities consistently stressed that the plaintiff was free to buy the medications from the commissary, if he wanted to take them on his own schedule ― but he didn’t have even a fraction of the money this would have required, and wouldn’t have been allowed to buy more than a few days’ supply per month anyway.) And since the plaintiff did not supply an expert opinion of his own, the doctor’s stood uncontradicted ― until Judge Posner took to the internet.

What Judge Posner found there, crucially, is that the doctor’s assertions about the effectiveness of the medication at issue were flatly contradicted by the information provided by the drug companies manufacturing the medication, as well as other sources of medical information. The defendants’ expert suddenly looked incompetent, self-interested, or both. There was, after all, a genuine issue for trial.

But was it appropriate for Judge Posner to start looking for the medical information that the plaintiff did not provide him with? The judge makes no apologies: “When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness.” (13) This is particularly so when there is little relevant information in the record, and when it is only used to establish the existence of a genuine issue for trial, not to determine the outcome of the case.

And there is more. After a rather bizarre reference to the Magna Carta, Judge Posner asks:

Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit? (14)

And further:

[T]o credit [the doctor’s] evidence … just because [the plaintiff] didn’t present his own expert witness would make no sense—for how could [he] find such an expert and persuade him to testify? He could not afford to pay an expert witness. He had no lawyer in the district court and has no lawyer in this court; and so throughout this litigation (now in its fourth year) he has been at a decided litigating disadvantage. He requested the appointment of counsel and of an expert witness to assist him in the litigation, pointing out sensibly that he needed “verifying medical evidence” to support his claim. The district judge denied both requests. (15)

In short:

It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence. (16)

Besides:

[H]ow could an unrepresented prisoner be expected to challenge the affidavit of a hostile medical doctor (in this case really hostile since he’s a defendant in the plaintiff’s suit) effectively? Is this adversary procedure? (17; emphasis in the original)

(Sorry for the block quotations, by the way. With Judge Posner, the temptation irresistible.)

Judge Posner adds that the trial court should consider appointing a lawyer for the plaintiff and a neutral expert when it hears this case ― though he does not order it, and acknowledges that the budgets both of the court and of the defendants (who might be made to pay for it all) are limited.

Judge Hamilton, dissenting in part, is not impressed with Judge Posner’s approach to this case. For him, it is “an unprecedented departure from the proper role of an appellate court [that] runs contrary to long-established law and raises a host of practical problems.” (29) He faults Judge Posner for “hav[ing] created an entirely new, third category of evidence, neither presented by the parties nor properly subject to judicial notice.” (37) Although Judge Hamilton acknowledges that “[w]hen a prisoner brings a pro se suit about medical care, the adversary process that is the foundation of our judicial system is at its least reliable,” (39) he thinks that Judge Posner’s remedy is worse than the disease. For one thing, it “turns the court from a neutral decision-maker into an advocate for one side.” (40) For another, it is not clear when or how the courts are supposed to supplement the parties’ research with their own. Judges, says judge Hamilton ― relying on an old, but on-point, quotation from Judge Posner himself ― lack the resources for acting as their own experts, and should not try.

There is still more to the opinions, including a brief concurrence arguing that the internet research is not as central to the majority opinion as it might seem, and an “appendix” by Judge Poser responding to Judge Hamilton’s critique. If you want more excerpts, Josh Blackman’s has got them. For my part, I close with a few comments.

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A few months ago, I blogged about a very interesting paper by Lisa Kerr about challenging the prison authorities’ assertions of expertise in order to secure prisoners’ rights. It was, I said, “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” The reason for the epithet was that Judge Posner has long been an ardent advocate for more fact-heavy litigation.

But as I also said in a (friendly) critique of prof. Kerr’s argument, one problem with such appeals for more evidence, especially expert evidence, is that it can be very hard to come by, especially in “ordinary” cases rather than those that are designed and litigated by specialized public-interest advocacy organizations. (I also took up this point here.) Rowe is the epitome of such “ordinary” cases, because it was brought not by a prisoners-rights advocate, of the sort to whom prof. Kerr’s article is first and foremost addressed, but by a self-represented prisoner who, as Judge Posner notes, is no position to take prof. Kerr’s and Judge Posner’s advice, sound though it is in theory.

Is it right, then, for courts to effectively substitute themselves for the missing experts in such cases? Or are the dangers of partiality and unreliability too high? I’m not sure that partiality is as serious an issue as Judge Hamilton makes it out to be. In this case, neither party presented anything like solid scientific evidence. Was Judge Posner taking the plaintiff’s side when he started googling for it? I’m not convinced. Besides, for better or worse, it is already the case that judges (and their clerks) might be going the extra mile, or at least putting in the extra hour, to find plausible legal arguments in the self-represented parties’ submissions. If this is a problem ― and I’m not convinced that it is, though perhaps I’m just trying to wish away the sins of my clerkship ― it is by no means unique to scientific issues.

Reliability is a bigger worry, for me anyway. Judge Posner himself has long pointed out that most judges aren’t very good at doing science, or social science. In his “Appendix” he points at errors in Judge Hamilton’s reading of the scientific evidence in Rowe. He may well be right. But if a thoughtful appellate judge can so easily err, is it a good idea to entrust judges with this responsibility? Not every judge has Posnerian talents (and his own scientific endeavours have sometimes been criticized too).

At the same time, we have to weigh the risk of unreliability against that of manifest injustice. Judge Posner has a point when he says that the adversarial process may not be functioning when the parties’ resources are as unbalanced as they are in this case. The judges who end up “helping” self-represented litigants in one way or another, are all aware of this point, as indeed is Judge Hamilton. Is the solution in some sort of reform that would explicitly set out the rules for the judges to follow? Judge Hamilton is right that Judge Posner’s approach offers no real guidance to either litigants or judges. But perhaps the trouble is that we are still very far from having figured out what these rules should look like. And perhaps, then, it is better to let the cases develop, to let the judges argue it out, before rushing to either reaffirm the traditional rules or formulate new ones.

Legal realists said, derisively, that the law depends on what the judge who declares it ate for breakfast. That would be troubling, if true. And it seems troubling, too, that the outcomes of cases should be dictated by what the judge googled (at breakfast or any other time). But if the realists were right, the solution surely was not to prevent judges from having breakfast. A hungry judge isn’t obviously better than a satiated one. Similarly a judge who meticulously follows a diet of neutral ignorance might not be better than one sated on Google.

The Fog of Law

The Prime Minister has announced that, should his government return to power after the election, it will seek to enact legislation criminalizing the travel to some parts of the world, considered to be hotbeds of terrorism. Both the list of areas in question and the details of the legislation are sketchy at this point, so it is hard to say anything definitive about this proposal. Craig Forcese considers both the merits of this proposal and its constitutionality, on the basis of what little is known about it, and concludes that while some version of a travel ban would be both a good idea and constitutional, Mr. Harper’s proposal, which would apparently include exceptions ― subject to a reversed burden of proof ― for journalists, humanitarian workers and, maybe, for people go to the prohibited zones to fight terrorists as well, might be neither.

Unlike prof. Forcese, I’m not qualified to speak to the merits of Mr. Harper’s idea. However, I want to venture some thoughts about its constitutionality. Overall, my views are similar to prof. Forcese’s. I think that some form of travel ban may well be constitutional, though the exceptions make defending the proposal put forth by Mr. Harper more difficult to defend. In this post, I will consider four Charter rights potentially implicated by the proposal, as well as the arguments that might justify limiting these rights under s. 1 of the Charter.

The most obvious place to start in assessing the constitutionality of a travel restriction is surely section 6(1) of the Charter, which states that “[e]very citizen of Canada has the right to enter, remain in and leave Canada.” Prof. Forcese says that “it is not clear … that the s.6 right to enter and leave Canada includes ‘the right to leave Canada and go to a war zone of your choosing’.” I would put the same thing even more strongly: the constitutional text speaks of a “right to … leave Canada” ― not a right to go anywhere in particular. I suspect that what inspired its entrenchment (and, earlier, the enshrinement of international mobility rights in the International Covenant for Civil and Political Rights) was the practice of totalitarian (especially Communist) regimes to prevent their citizens from leaving the country whether permanently or even temporarily ― or, having allowed a person to leave, of stripping him of citizenship and thus preventing his return. A targeted travel ban is very far from that sort of thing. It is arguable, I suppose, that the longer the list of prohibited destinations, the more illusory the right to leave the country becomes. But for now that is a theoretical concern. In my view, the government would have a very strong argument on this point. That said s. 6(1) has not received much attention from the Supreme Court, except in the context of extradition and the transfer of Canadians imprisoned abroad back to Canada. Its contours in other circumstances remain to be drawn.

A related argument involving a constitutional right that has received even less attention from the Supreme Court is that based on the freedom of the press protected by section 2(b) of the Charter. Prof. Forcese suggests that “the reverse onus ― requiring a journalist to prove they are journalist to avoid going to jail for travelling to a designated zone ― could also raise novel new s. 2(b) freedom of the press issues.” Indeed, while there is little if any jurisprudence to rely on for such a claim, it would be a plausible one if, as Benjamin Oliphant has proposed in a fascinating article, the freedom of the press were interpreted as protecting newsgathering activity. A journalist travelling to a designated area to collect information in order to inform the Canadian public of the goings-on there would, quite clearly, be engaged in newsgathering, and thus in a constitutionally protected activity. (Mr. Oliphant suggests excluding “inherently harmful activity” from the scope of this protection, however; I suspect that travel, even to a terrorist-infested warzone, wouldn’t qualify as “inherently harmful,” but it’s not entirely clear to me how that might pay out.)

It is worth noting the negative implications of this argument, however. “Freedom of the press” is explicitly protected by the Charter. “Humanitarian work,” “fighting terrorists,” or whatever other activity people might want to engage in in the areas subject to the travel ban are not ― even in Canada, never mind abroad. To me, this seems to strengthen the case against reading s. 6 so as to include the right to travel to some specific foreign destination for these purposes. Nor would this right be protected by the liberty guarantee of s. 7 of the Charter. While the Supreme Court has interpreted this guarantee to encompass “fundamental personal choices,” it seems very unlikely that it would treat an occupational choice, even a humanitarian one, as fundamental enough. That said, Mr. Harper’s travel ban proposal would still implicate s. 7 if penalties for breach include imprisonment. I will come back to that point shortly.

First though, I want to discuss the presumption of innocence, entrenched in section 11(d) of the Charter, and the possibility of justifying an infringement under s. 1. Prof. Forcese points out that “while the jurisprudence under [s. 11(d)] and its application to defences is less than a paragon of clarity, it is still a meaningful hurdle for the government.” Indeed, it seems to me that a finding that requiring people to prove the reasons for their presence in a prohibited area, instead of asking the prosecution to prove that their purpose in being there was not among the authorized exceptions, infringes the presumption of innocence is likely enough.

Can the reverse onus (and, possibly, the burden it puts on the freedom of the press) be justified under s. 1 of the Charter? Here I part ways with prof. Forcese, who says that he doesn’t “think [he] could ever concoct a s.11(d) or s.2 justification that would satisfy s.1.” I think that the way for the government to at least try justifying the reverse onus aspect of its travel ban would be to point to the difficulty for the prosecution of gathering evidence in prohibited areas, and perhaps the comparative ease with which the persons who actually travel there might be able to collect evidence of their activities. Prof. Forcese says that “evidence necessary to prove the many complicated elements of a terrorism offence [is] often unavailable when it comes to proving actual conduct in a war zone,” which might explain the paucity of prosecutions under these offences in Canada and elsewhere. Arguably, the same logic can be applied to the travel ban, and invoked to justify requiring the accused, rather than the prosecution, prove the reasons for their travel, and indeed make the reverse onus the least restrictive means of attaining the objectives of the travel ban.

Just what would such an argument, if it is accepted (and I don’t feel confident prognosticating whether it would be, though I think that that’s at least a real possibility) prove? A couple of Supreme Court decisions are interesting here. One is R. v. Keegstra, [1990] 3 S.C.R. 697, the hate speech case. It is better known for what it said about freedom of expression, but there was also a s. 11(d) argument involved, because the Criminal Code provided a defence of truth to a hate speech charge ― but one that the accused had to prove. The majority said that while a violation of s. 11(d), the reverse onus was justified under s. 1, in part because proving the falsity of a statement beyond reasonable doubt is too difficult, and because the harm caused by hate speech occurs even if what is said is true, so that it is important not to let the accused off the hook too easily.

The other relevant case is R. v. Laba, [1994] 3 S.C.R. 965, which considered the constitutionality of a requirement that a person accused of selling ore or other minerals containing precious metals prove his or her legal entitlement to do so. This was, concededly, a violation of s. 11(d), but the Supreme Court concluded that some infringement of the presumption of innocence was justified because it was important to prevent trade in stolen ore, and the technology that would allow the Crown to prove the provenance of an ore sample and thus establish that it had been stolen was not yet good enough. However, the Court also said that instead of having the accused prove their entitlement to be selling the ore on a balance of probabilities, the requirement that the infringement be minimally impairing of the s. 11(d) right meant that it should be enough for them to present evidence that raises a reasonable doubt as to their guilt.

We don’t know, of course, what form the reverse onus aspect of the travel ban would take. And even if it is a full requirement to prove one’s reason for going to a prohibited zone on a balance of probabilities, it is not clear to me whether the courts would see the case as being more like Keegstra or Laba. In R. v. Keegstra, [1996] 1 S.C.R. 458, the Court said that the two cases were distinguishable, but did not actually explain why. I suppose the difference is this idea that hate speech is harmful even if within the scope of the defence. What about travel to prohibited zones? If I read prof. Forcese correctly, he suggests that it might be, but perhaps the very existence of the defence should be taken to reflect a governmental judgment that this is not so.

I come back now to the s. 7 issue I had set aside before. It might be something like a trump card against the s. 1 argument I have just described. The possibility of imprisonment for breaching the travel ban would have to be in accordance with the principles of fundamental justice. The relevant principle here is that first identified in Chief Justice Dickson’s judgment in R. v. Morgentaler, [1988] 1 S.C.R. 30 (and later recalled ― although not found to be applicable ― by the majority in R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187): “when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.” The issue here is was whether the difficulty of obtaining evidence in a prohibited area would mean that not only the prosecution, but also the defence would it it impossible to do so. (By contrast, in Laba, the Court was of the view that an innocent person would not find it difficult to introduce the evidence required at least to raise a reasonable doubt.) As I suggested above, it seems to me that the accused should be in a better position than the prosecution, but I don’t know enough to really tell.

All that to say, it is by no means impossible that a travel ban, even in the form mooted by the Prime Minister, would be constitutional, but also by no means certain. The matter is quite complicated, not least because many of the constitutional issues that the proposal raises have not been much explored. Uncertainty isn’t only a characteristic of war zones. It is also, sometimes at least, a prominent feature of constitutional law.

UPDATE: Kent Roach takes on the travel ban proposal an interview with UofT News. He thinks that the ban would infringe ss. 6(1) and 11(d) of the Charter, and also seems more skeptical of its merits than prof. Forcese. Also, have a look at CM’s comments below. My own views haven’t changed, however.

FURTHER UPDATE: Michael Plaxton Tyler Shandro comments over at the Policy Options blog (apologies for my confusion about the authorship of the post!). He seems pretty confident that Mr. Harper’s proposal, in its current form, already takes the Charter issues into account and is constitutional. Still, I am not persuaded that the objections I discuss above can be so easily dismissed.

Show ‘Em

Earlier this week, an American court issued a decision on a topic that is all but certain to come up for discussion in the weeks after October 19: the ballot selfie, and the attempts ban it. Judge Barbadoro of the U.S. District Court in New Hampshire declared unconstitutional that state’s law that made it an offence to show one’s completed ballot to another person “with the intention of letting it be known how [one] is about to vote or … has voted,” including by means of “taking a digital image or photograph of [the] marked ballot and distributing or sharing the image via social media or by any other means.” Over at the Election Law Blog, Rick Hasen comments on the decision, hoping that it will be reversed on appeal.

For my part, as usual, I express no views on the propriety of this outcome under American law. However, because the issue has already come up in Canada (though without as yet resulting in a court judgment, so far as I can tell), and is very likely to come up again, I think it worthwhile to briefly summarize the court’s reasoning, and highlight a number of very interesting questions that it gives rise to.

Judge Barbadoro’s decision begins with a review of the history of the secret ballot ― or, as he calls it, the “Australian” ballot ― in the United States. As in the United Kingdom (about which I blogged here) and in Canada, elections prior to the introduction of the secret ballot were a brutal business. Corruption and intimidation, even violence, were commonplace. The use of the secret ballot, as well as legislation targeting such manipulation of the voters more directly, helped mostly (although not entirely, the judge says) eradicate it. Indeed, there is no evidence of voters being threatened or bought in New Hampshire recently, and the supporters of the ballot selfie prohibition did not cite any such cases, beyond one dubious anecdote, in defending the law.

Applying the analytical framework developed by the U.S. Supreme Court for freedom of expression cases, Judge Barbadoro then asks whether the prohibition is a “content-based” restriction on speech and, having concluded that it is, whether it is “narrowly tailored” to serve a “compelling government interest.” The judge concludes that the law meets neither of these conditions. While preventing corruption at the ballot box is a compelling interest in theory, the government must also “demonstrate” that it is invoking it to address an actual problem. Since there is no evidence of corruption or intimidation actually going on, the government has failed to do so:

even though small cameras capable of taking photographic images of ballots have been available for decades and cell phones equipped with digital cameras have been in use for nearly 15 years, the [State] has failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote buying or voter coercion. (32)

Judge Barbadoro adds that even if he had found the government’s interests compelling, he would still have held that the prohibition on ballot selfies is not “narrowly tailored.” Instead of banning people from sharing images of their ballots regardless of their motivations for doing so, it should focus on the use of such pictures to enable corruption and intimidation. In any case, “[t]he few who might be drawn into efforts to buy or coerce their votes are highly unlikely to broadcast their intentions via social media given the criminal nature of the schemes in which they have become involved.” (38)

The most important question judge Barbadoro’s conclusion elicits concerns the role of the courts in cases where they are dealing with prophylactic legislation, which aims not to address existing problems but to prevent problems from happening in the first place. By their nature, such laws are harder to justify by reference to evidence. And it stands to reason that that could open to the door to governmental abuse. Restricting constitutional rights “just in case” is a disturbing idea. Yet must the government wait for problems to arise before it can do anything about them? Especially when the problems at issue are not something inherently vague and uncertain, like the unfairness of the electoral process purportedly caused by the absence of campaign spending restrictions, but actual criminality, like bribery and intimidation. And all the more so when there is a history, albeit a somewhat remote history, of such problems actually happening.

The interpretation of this history is another big issue raised by Judge Barbadoro’s decision. What are we to make of the decline and virtual disappearance of voter bribery and intimidation in the wake of the adoption of the secret ballot and the enactment of the laws against such practices? How do we disentangle the effects of these laws from those of the secret ballot itself? Is the very success of these techniques a reason for letting ballot secrecy fall by the technological wayside? And then, there are questions about much more recent history ― specifically that of the ballot selfie and the innovations that enable it. Judge Barbadoro asserts that cellphone cameras have been around for 15 years, but how widespread were they then? The Oxford English Dictionary’s lexicographers have tracked down an example of the word “selfie” being used back in 2002, but the explosive spread of the phenomenon is surely more recent, and the idea of the “ballot selfie” might be more recent still. Is it, then, really the case that any problems that this phenomenon might generate ought to have become manifest, as Judge Barbadoro suggests? (Incidentally, while his opinion provides a wealth of citations to materials on the history of the ballot, this technological history is merely asserted.)

Finally, I think it is worth asking whether outright corruption or threats are the only reasons to worry about ballot selfies. In fairness to Judge Barbadoro, they were the only reasons asserted by the New Hampshire prohibition’s defenders. And the judge is probably right that people involved in corruption or subject to intimidation are unlikely to post their ballot selfies on social media. They’ll just show them to the persons paying or threatening them, and go undetected. But should we not also be concerned about the more diffused social pressure that can be brought to bear on people who let ― or those who fail to let ― others know how they voted? Should we not worry about people being pressured to vote, or to vote in a particular way, and to prove that they have done so, not by a specific manipulator, but by their online peers? People involved in “shaming” a person who didn’t vote to their satisfaction might not be committing an offence, and the line between legitimate and immoral behaviour in this realm is probably too blurry to lend itself to legal implementation. In this respect, the prophylactic prohibition on ballot selfies might actually be necessary.

As I said that in the post linked to above, I believe that the secret ballot “was one of the greatest inventions of a century that did not lack for them, and there is no reason to give it up.” And I am inclined to further believe that even coercive enforcement of ballot secrecy is justified. My hunch is that Canadian courts would agree, though I haven’t thought the matter through in detail. (I’ll try to do that before October 19.) In the state whose motto is “live free or die,” however, you’re now entitled not just to tell people how you voted, but to show them, too.

UPDATE: Prof. Hasen now has an op-ed for Reuters, further explaining his views. His most compelling argument, in my view, is the following:

the effectiveness of the selfie ban and the continued occasional prosecutions for vote buying, especially for absentee ballots, show that where there can be verification of how someone voted, this is a real — not theoretical — problem.

Persuasion and Voting from Abroad

When Norman Spector and I debated the disenfranchisement of Canadians abroad on the CBC’s The 180 a couple of weeks ago, he pointed to the fact that some expatriates ― such as Americans he met in Israel while he was Canada’s ambassador there ― vote on the sole basis of the candidates’ policies towards their current country of residence. I replied that there are plenty of single-issue voters in Canada too, and that there is no good reason for treating expatriates differently from them. Life has come up with an ironic twist on this particular argument: an effort is underway in Israel to “to send a small group of Canadians living currently in Israel that will go back to Canada in order to vote in the coming elections [and] encourage the Canadian Jewish Community to go out and vote for him.” The project’s founder, Dan Illouz, claims that “Stephen Harper is Israel’s greatest friend amongst world leaders,” and deserves the Israelis’ help and support.

Mr. Illouz is, clearly, not very well acquainted with Canadian election law, if he thinks that the missionaries he proposes to send to Canada will be able to vote here. They won’t, since they are not registered to do so. He also appears to be unaware if the fact that “[v]oting through absentee,” as he puts it, is not an option available to those Canadian citizens who, like him it would seem, have resided abroad for more than five years. And, while I cannot be sure of that, I somehow suspect that he is equally unaware of Mr. Harper’s government not only having vigorously defended the disenfranchisement of Canadians abroad in the courts, but also having introduced a bill, C-50, that would have made it well-nigh impossible for any Canadian expatriate to vote.

Those Israelis who are contributing to Mr. Illouz’s effort might also want to consider the fact the Canada Elections Act provides that a person who is not a Canadian citizen or permanent resident and does not live in Canada may not “during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate.” Mr. Illouz and his hypothetical emissaries are within their rights, being Canadian citizens, to induce others to vote for Mr. Harper. But to the extent that financial contributions that enable their efforts are themselves a form of “inducement,” those of their contributors who are not Canadian are not. (If you think that’s unjust, consider that the Canada Elections Act also prohibits people who are not citizens or permanent residents from contributing to political parties, and ― after amendments enacted under Mr. Harper’s government ― provides that people who are not citizens or permanent residents and do not live in Canada are not allowed to run third-party election advertising. For my part, I’m not quite sure whether any of these prohibitions are justified, but there they are.)

Anyway, I am writing about this not in order to educate Mr. Illouz and his contributors about Canadian election law, but rather to highlight the inconsistency in that law’s relationship to Canadian citizens who live abroad. They are allowed to contribute to political parties, to advertise during election campaigns (subject to the same, admittedly excessively stringent, limits that apply to all Canadians), and otherwise to seek to influence the outcome of Canadian elections. Yet they are not allowed to vote themselves. Frankly, I don’t see how that makes any sense.

False Friends

The elevation of Justice Brown to the Supreme Court has provoked an outpouring of anguish and anger about the system of judicial appointments in Canada. The critics of the current arrangements, whereby judges of superior, federal, and appellate courts are in effect appointed by the federal government, with relatively little ex-ante and no ex-post control by anyone else say that they allow ideology, partisanship, or patronage to play too large a role in the selection of judges. Some go so far as to say that these arrangements make the impartiality of the judiciary questionable. In a recent op-ed in the Globe and Mail, Joseph Arvay, Sean Hern, and Alison Latimer go further still, and call for a constitutional challenge to be brought, allowing the Supreme Court to require the creation of “an independent appointment and promotion commission.” Actually, such a ruling by the Supreme Court may well prove a disaster for the independence of the Canadian judiciary.

I can’t help but notice that there is something deeply ironic about many of the calls for reform that have been prompted by the appointment of Justice Brown and, earlier, that of Justices Huscroft and Miller to the Court of Appeal for Ontario. These appeals give pride of place to the need to free the appointments process of the influence of ideology. Why is it, then, that they follow the appointment of judges known or suspected to be ideologically out of step with the bien-pensant Canadian legal community? Why was there nothing like the same amount of criticism directed at the process by Justice Côté was appointed, which was no different from that which led to the appointment of Justice Brown?

To be sure, the Canadian judicial appointments system has long had its critics, and they are entitled to use the news cycle to advance their arguments. But they seem to me to be a minority among those who have been denouncing the appointments process in the last few weeks. For the other would-be reformers, at least, the aim seems to be not so much to rid judicial appointments of ideology, but to prevent the appointment of certain judges for the same sort of ideological reasons which they say have no role to play in this process.

Whatever their motivations, Messrs. Avray and Hern and Ms. Latimer that the processes of judicial appointment and promotion in Canada “are systemically vulnerable to political strategizing and a majoritarian disregard for the importance of diversity on the bench.” It is clear enough that the ominous-sounding “strategizing” is the appointment by of judges presumed to be ideological allies. As for “diversity,” though its meaning is never actually explained, it seems to refer to a diversity of the demographic kind ― not a diversity of opinion.

According to Messrs. Avray and Hern and Ms. Latimer, the risk of “strategizing” and the lack of diversity create a risk that the judiciary will be perceived as not independent from government. They seem especially worried by the process of promotion from a lower to a higher court, over which the government now his full discretion. Litigants, they say, “must be free of all reasonable concern that the presiding judge could be influenced by a desire to be promoted.” As I have already said, their proposed solution to these ills to set up, by judicial fiat, an independent commission that would, presumably, see to it that merit and diversity are the only factors considered in the appointment and promotion processes.

This remedy would in my view be worse for the independence of the Canadian judiciary than the disease ― if, indeed, disease there is. Messrs. Avray and Hern and Ms. Latimer claim darkly that “public confidence in the process is failing,” but offer no evidence whatever in support of that claim. Is an outburst of panicked tweets and top-eds from a certain section of the legal community indicative of falling public confidence? Colour me skeptical. It is well known that the Conservative government has kept losing more and more cases before the Supreme Court even as it appointed more and more of that court’s judges. For anyone to think that, nevertheless, the appointment process has in any way undermined the Court’s independence, they would have to be simply paranoid. Messrs. Avray and Hern and Ms. Latimer are not paranoid, so they only speak of “appearances” of a lack of independence, but even so, it is hard to avoid the impression that appearances rather support than infirm the impression that the government has no sway whatever over the judiciary.

The inspiration for their argument is, of course, the Supreme Court’s notorious opinion in the Provincial Judges Reference. The Court said there that a constitutional principle of judicial independence demanded the creation of independent commissions that would issue recommendations as to the appropriate level of judicial compensation. But it is important to keep in mind what the Court did not say, too. Notably, it did not say that a neutral, impartial, or depoliticized appointments process was a component or a requirement of judicial independence. Indeed, the Supreme Court has never said that it was. To reach such a conclusion now would be a major innovation. The Court also did not require governments and legislatures to follow the commissions’ recommendations ― only to give a rational explanation for any refusal to do so. Could a government similarly disregard the recommendations of the commission proposed by Messrs. Avray and Hern and Ms. Latimer? If not, their proposal is even more of an innovation, compared with the alleged precedent for it. If yes, then how would the process work?

This is just one of the important practical questions that the op-ed does not even begin to address. While its authors denounce the lack of clarity about “the standard on which merit is determined” in the current process, they say nothing of the standard they themselves would like to see enforced by the commission they propose. (Nor do they say who ― the Supreme Court, Parliament, or the proposed commission itself ― should devise such a standard.)That is, I suspect, because there is and can be no objective standard at all. Of course, we can agree that some credentials and character traits are required in a judge, and some desirable, while other traits must be avoided; but not all judicial virtues are subject to universal agreement, and even among those that are, there is no agreement on how to weigh the different qualities are to be weighed. Nor is there a way of guaranteeing that judges will not decide cases with an eye towards the preferences of the authority responsible for promoting them ― whether the government or a commission. We must, in this respect (as in others) rely on the judges’ good faith and ethos of independence ― which is almost certainly stronger than the alarmists would have us think.

But the proposal of Messrs. Avray and Hern and Ms. Latimer is not “merely” unworkable ― it is also horribly counterproductive. It is important to appreciate its radicalism. There has never been an independent commission of the sort they recommend. (Indeed, when amendments to the process of appointing judges to the Supreme Court were proposed as part of the Meech Lake and Charlottetown accords were considered, the issue was involving additional political actors in the process, not creating an independent bureaucracy to direct it.) Implicit in the argument that such a commission is required to uphold the appearance of judicial independence is, then, the striking proposition that the Canadian judiciary has never in its history appeared quite independent of the executive that appointed it. Not when it stopped Pierre Trudeau’s attempts at unilateral Senate Reform or Patriation; nor when it struck down the Lord’s Day act or a variety of criminal law provisions insufficiently respectful of the rights of suspects and the accused; nor yet more recently, as it delivered rebuke after rebuke to the present government. Nobody actually believes that, of course. A judicial decision that ratifies this principle would be a substantial constitutional amendment. (Not the first such amendment, to be sure, as Grégoire Webber has cogently demonstrated.)

Would such an amendment be a good thing? Admittedly, I am skeptical of its substantive merits, as I actually believe that ideological diversity on the bench, which is no less, and probably more, important than the demographic kind, is better served by government control over judicial appointments than by a commission staffed, in all likelihood, by people committed to the prevailing orthodoxy. But even if you disagree with me about that, you ought to be concerned about the introduction of such an amendment by judicial fiat. The Supreme Court’s opinion in the Provincial Judges Reference has been the subject of withering criticism (for example, by Jean Leclair) ― and yet its practical impact, in terms of impairing the powers of governments, was arguably a good deal less  serious than that of a ruling requiring appointments commissions would be. The backlash against such a ruling would almost certainly be stronger still. It was bad enough when judges seemed to be protecting their colleagues against the impact of budget cuts to which all public servants were subject. It will be worse if they seem to be insulating the courts from all outside influences, including those that have been regarded as legitimate and indeed desirable for 150 years. Those who are concerned about appearances out to be distressed by the prospect a judicial decision coming across as a self-interested constitutional coup.

Messrs. Avray and Hern and Ms. Latimer probably think that they act as the friends of the Canadian judiciary. But they do not. A friend does not expose you to a temptation in which he knows you to indulge more often than is good for you, as Canadian courts do with re-writing constitutional law. A friend does not urge to stake your reputation on an enterprise whose benefits are uncertain at best, as decision requiring appointments commissions would be. Most importantly, a friend does not make disparaging insinuations about you in order to make you cave to his requests, as Messrs. Avray and Hern and Ms. Latimer do when they claim, without any basis, that the courts are already losing their legitimacy.

Stare decisis stricto sensu c. Strickland (c. Canada): connaissons-nous bien la portée des jugements de la Cour fédérale?

Dans l’arrêt Strickland c. Canada (Procureur général) du 9 juillet dernier, arrêt que mon hôte a brillamment commenté sous d’autres aspects, le juge Cromwell, dans des motifs majoritaires non contredits sur cette question par les motifs concordants des juges Abella et Wagner, a soutenu «qu’aucune cour supérieure provinciale ne serait liée» (par. 53) par un jugement de la Cour fédérale qui déclarerait invalide un règlement adopté par le Gouverneur en conseil pour avoir été adopté ultra vires de la loi habilitante. Cette conclusion ne semble pas se vouloir déterminante, du moins dans la mesure où la deuxième phrase d’après commence par : «Même si la décision suivant laquelle les Lignes directrices sont illégales était contraignante […]» Quoi qu’il en soit, cette conclusion m’a sauté aux yeux comme une erreur.

À mon sens, cette erreur s’explique par une confusion entre l’autorité (médiate, hétéronome) jurisprudentielle qui est celle des motifs d’une décision et l’autorité (immédiate, autonome) de la décision elle-même, autrement dit par une confusion entre le stare decisis et la res judicata. Car, s’il est vrai que le jugement motivé de la Cour fédérale n’a pas valeur de précédent pour la Cour supérieure d’une province, en revanche les déclarations formelles d’invalidité prononcées par la Cour fédérale doivent produire des effets erga omnes sur tout le territoire sur lequel s’exerce la compétence de cette cour. S’il en était autrement, alors ce serait que celle-ci est une cour de compétence inférieure plutôt que supérieure. Je m’explique.

Il importe de distinguer la jurisprudence des décisions comme telles, bien que les deux soient source formelle de droit. Des secondes sont d’abord issues des normes juridiques de portée dite «individuelle», c’est-à-dire réduite aux faits qui en font l’objet. De la première, qui par définition consiste en un ensemble de décisions judiciaires et qui en pratique se dégage surtout des motifs de celles-ci, sont en outre issues des normes juridiques de portée générale, c’est-à-dire d’une portée qui s’étend au-delà des faits particuliers sur lesquels porte chacune des décisions dont elle se compose. C’est ainsi qu’il faut savoir distinguer entre l’autorité de chose jugée que pose le principe de la res judicata et celle de la jurisprudence sur laquelle porte plutôt le principe du stare decisis.

Le principe de stare decisis ne vaut qu’au sein d’un même ordre judiciaire, si bien que la jurisprudence d’un tel ordre ne comprend pas les décisions rendues par les tribunaux d’un autre tel ordre. Or les limites d’un ordre judiciaire ne correspondent pas toujours parfaitement avec les frontières d’un pays. Au Canada justement, il existe une relative pluralité d’ordres judiciaires. Les ordres judiciaires provinciaux, fédéral et territoriaux s’y distinguent les uns des autres à cette exception près qu’ils partagent une même juridiction ultime, en l’occurrence la Cour suprême du Canada. Pourvu qu’il porte sur du droit qui y est applicable, l’arrêt de la Cour suprême du Canada fera partie de la jurisprudence de tout autre ordre judiciaire canadien que celui dont provenait l’affaire dont il dispose. Pour le reste, les décisions des tribunaux d’un des nombreux ordres judiciaires du pays ne font pas partie de la jurisprudence des autres. Cela vaut tant à l’égard de la dimension qualitative du stare decisis qu’à celui de sa dimension quantitative, de sorte que, par exemple, la cour supérieure d’une province n’est pas «liée» par quelque arrêt de la cour d’appel d’une autre province davantage que par la masse des jugements de sa cour supérieure. Elle n’est pas «liée» non plus par la jurisprudence des cours fédérales de première instance et d’appel, par exemple. Bien sûr, la jurisprudence d’un autre ordre judiciaire pourra toujours être néanmoins source simplement matérielle de droit.

En principe, à elle seule, autrement dit indépendamment de la jurisprudence à laquelle elle pourra contribuer, une décision judiciaire ne vaut comme res judicata qu’entre les parties de manière à n’être source de droit que de portée individuelle. Or, en droit public, il est fréquent qu’une décision se fonde sur la conclusion qu’une norme écrite de portée générale, que celle-ci soit consignée dans une loi ou dans un règlement, est invalide, et il se peut que le tribunal qui a rendu cette décision soit titulaire d’une compétence formelle de contrôle de conformité au droit dont les effets, pour peu que la conclusion d’invalidité soit de nature déclaratoire, vaudront erga omnes, et non seulement inter partes.

Au Canada, les titulaires de cette compétence sont en définitive les «cours supérieures» au sens large, à savoir, non seulement ces cours de justice dont il question aux articles 96, 99 et 100 de la Loi constitutionnelle de 1867 –soit celle qui, dans chaque province, est titulaire d’une compétence de principe, de même que la Cour d’appel qui, historiquement, en est souvent dérivée–, mais aussi la Cour suprême du Canada, les cours d’appel territoriales, les cours fédérales de première instance et d’appel, la Cour canadienne de l’impôt, la Cour d’appel de la cour martiale, la Cour suprême du territoire du Yukon, la Cour suprême des Territoires du Nord-Ouest et la Cour de justice du Nunavut. La conclusion d’invalidité d’une norme de portée générale prononcée par l’une de ces cours de justice vaudra, non seulement entre les parties, mais à l’égard de tous.

Si le tribunal titulaire d’une compétence formelle de contrôle est, sur le plan matériel, titulaire d’une compétence de principe, son pouvoir de contrôle ne connaîtra comme limites que celles de sa compétence territoriale. En revanche, s’il n’est au plan matériel titulaire que d’une compétence d’attribution, son pouvoir de contrôle sera en outre limité aux contours de celle-ci. À la différence des cours supérieures au sens strict, la compétence matérielle de la Cour fédérale est d’attribution. Par contre, et ceci à la différence des cours supérieures au sens strict encore une fois, sa compétence territoriale s’étend à tout le territoire canadien. Ses déclarations formelles d’invalidité valent donc erga omnes sur tout ce territoire, y compris à l’égard de la cour supérieure de chacune des provinces.

Si je ne m’abuse, il faut donc bien se garder de confondre les effets erga omnes autonomes d’une décision avec ses effets hétéronomes jurisprudentiels, qui eux dépendent des modalités particulières selon lesquelles s’applique au Canada le principe du stare decisis. Si j’avais raison, il le faudrait même à l’encontre de notre Cour suprême.

Postscriptum. Je publie les lignes qui précèdent par souci pour la logique, non pas par amour particulier du pouvoir de contrôle et de surveillance qui a été reconnu à la Cour fédérale. Je continue même de croire que ceux qui, à l’origine, ont contesté la constitutionnalité de ce pouvoir avaient raison. Par conséquent, si l’on tient absolument à revenir sur ce pouvoir pour faire de la Cour fédérale une cour de compétence inférieure, cela me conviendra parfaitement, pourvu que ce soit d’une manière logiquement assumée.