The Scope of Smuggling

On Friday, the Supreme Court issued a pair of decisions clarifying the scope of the provisions of the Immigration and Refugee Protection Act (IRPA, among friends) relative to “people smuggling” ― the transportation to or across international borders of consenting individuals who lack the authorization to cross the borders in question. In  B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, the Court held that a person is not inadmissible to Canada on grounds of organized criminality if he or she was not acting in order to obtain “a financial or other material benefit in the context of transnational organized crime.” [5] In R. v. Appulonappa, 2015 SCC 59, the Court held that the penal provision of IRPA relative to smuggling was unconstitutionally overbroad “insofar as [it] permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members.” [5]

While the legal issues on which the two decisions ultimately turn are different ― B010 is about statutory interpretation while Appulonappa is a Charter cases ― they are closely related. Both decisions are unanimous, with the Chief Justice writing for the Court. I will review them together.

* * *

In B010, the issue was the scope of IRPA‘s provision that made foreign nationals inadmissible to Canada “on the grounds of organized criminality” and thus, if they claim asylum, prevented their claims from being determined on the merits, for “engaging, in the context of transnational crime, in activities such as people smuggling.” In the opinion of the Chief Justice, the “ordinary sense” of that provision, and in particular of the phrases “people smuggling” and “organized criminality” did not necessarily suggest that the activities it is aimed had to have a profit motive.

However, the Chief Justice concluded that provision’s “broader statutory context … suggests that [it] targets organized criminal activity in people smuggling for financial or other material benefit.” These considerations included the other grounds of inadmissibility provided by IRPA, which suggest that the provision at issue was specifically intended to target money-making organized crime, as well as the scope of the penal provision at issue in Appulonappa, which the Court held also targeted those who sought to make a profit from people smuggling. Moreover, the definition of a “criminal organization” in the Criminal Code, enacted so as to bring Canada into compliance with an international treaty a protocol to which deals with people smuggling, also refers to the profit motive. The protocol in question and other international agreements provided an “international context” which unambiguously pointed towards an intention to specifically outlaw profit-motivated smuggling, while not penalizing humanitarians and family members helping refugees.

* * *

As for Appulonappa, the issue there was whether IRPA‘s provision that imposed severe penalties, including potentially lengthy terms of imprisonment, on those who “knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required” was overbroad, and thus inconsistent with the principles of fundamental justice enshrined in section 7 of the Canadian Charter of Rights and Freedoms. A law is unconstitutionally overbroad if it penalizes acts that are not inconsistent with its purpose. Here, the problem was said to be that the provision reached the actions of those who did not seek to derive a material benefit from helping would-be refugees come to Canada. While the government argued the provision aimed “to catch all acts that in any way assist the entry of undocumented migrants,” the Court concluded that its purpose was narrower than that.

While the text of the provision in question was “broad enough to catch assistance to close family members and humanitarian assistance,” [36] here too other factors were more revealing of its aims. These factors included, once again, the international law, as well as the statutory context ― notably, the inadmissibility provision interpreted in B010, and the purposes of IRPA as a whole, which balance humanitarian concerns with those related to security. Importantly, IRPA provided that no prosecution for smuggling could be initiated without the agreement of the Attorney General. This “filter” was intended, as records of Parliamentary debates confirmed, to prevent the prosecution of persons participating in activities that fall within the broad definition of smuggling but are motivated by humanitarian or family concerns.

As the Chief Justice pointed out, it was thus clear that

Parliament itself understood … that the provision’s reach exceeded its purpose by catching those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada, but argued that this overbreadth was not a problem because the Attorney General would not permit the prosecution of such people.  [72]

In her view, reliance on the Attorney General exercising his discretion in this way was not enough to avoid the overbreadth problem. Whatever Parliament’s intentions, nothing stopped the Attorney General from authorizing a prosecution inconsistent with those intentions. Thus, so long as the provision remained on the books, “people whom Parliament did not intend to prosecute [were] at risk of prosecution, conviction and imprisonment.” [74]

By way of justification under section 1 of the Charter, the government seemed to argue that the provision could not have been less broadly than it was, and was therefore minimally impairing. The Chief Justice, however, observed that “[s]ection 1 of the Charter does not allow rights to be limited on the basis of bare claims, but requires the Crown to provide a demonstrable justification for inconsistencies with Charter rights” [82; emphasis in the original], and concluded that this justification was missing.

Ultimately, this may be of little help to the appellants who had challenged the constitutionality of the provision in question in Appulonappa. Instead of striking it down completely, as they had hoped, the Court read it down “as not applicable to persons who give humanitarian, mutual or family assistance,” [85] and order a trial based on this revised version. Because the appellants were not actually humanitarians at all, but the crew of a ship that brought dozens of refugees to Canada, they might not far any better as a result of their constitutional victory.

* * *

The Court’s reasoning in both decisions seems persuasive to me in both decisions, at least as to the specific questions the cases turn on. I am rather less impressed with the Court’s apparent endorsement of the policy of criminalizing profit-motivated people smuggling. In the introduction to B010, the Chief Justice claims that “[t]he smugglers … cynically prey on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face.” Unfortunately, the Chief Justice pays no heed to the role that the criminalization of for-profit smuggling plays in making it the gruesome business it undoubtedly is. I have addressed this issue here and, quite recently, here. I might return to it again. For now, it is enough that, bad as they still are, our immigration laws are a little less bad now than they used to be.

How to do Originalism

In my last post, I summarized the Supreme Court’s recent decision in  Caron v. Alberta, 2015 SCC 56, which held that Alberta is not under a constitutional obligation to enact legislation in French as well as English. There was, you will recall, a majority opinion by Justices Cromwell and Karakatsanis, who were joined by four of their colleagues, and a dissent by Justices Wagner and Côté, joined by Justice Abella. In this post, I would like to venture some comments on the disagreement between them. This disagreement was quite sharp. The dissenters insist that the majority’s reasoning both results from and perpetuates an injustice, although they never explicitly accuse the majority of being unjust. I suppose that dissenting judges often think that ― but it seems to me that the thought is rarely expressed. And yet, in a sense, the disagreement between the two opinions is very narrow, almost abstruse.

Both the majority opinion are originalist, in the sense that they accept that the meaning of the relevant constitutional provision is to be determined by reference to the ideas of the time of the provision’s enactment. The provision at issue in Caron is a passage from an Address by the Canadian Parliament to the Queen, adopted in 1867 pursuant to section 146 of the Constitution Act, 1867 to ask for the incorporation of what was then Rupert’s Land and the North-Western Territory (to which I will collectively refer as “the North-West”) into Canada, and incorporate into the constitution as a schedule to the Imperial government’s Order that annexed most of these lands (except the portion that became the province of Manitoba) to Canada. The Address and the Order resulted from a complex series of events and interactions between the Canadian government and Parliament, the Hudson’s Bay Company (which owned and administered the North-West), the British government, and the inhabitants of the North-West and their government and delegates who negotiated their entry into Canada. The two opinions make extensive reference to these events and interactions, and to the thoughts of the people involved. Repeated out-of-hand rejections of originalism notwithstanding, it is alive and kicking in Canadian constitutional law, as Benjamin Oliphant and yours truly have been pointing out for a while now.

The majority and the dissent disagree, however, about the sort of originalism that ought to govern their interpretation of the 1867 Address. The majority’s approach is something like “original public meaning originalism,” which, as Lawrence Solum explains, “emphasizes the meaning that [constitutional provisions] would have had to the relevant audience at the time of its adoption[].” Much of the majority opinion is devoted to showing that the phrase “legal rights” used in the Address would not have been understood, in 1867 or 1870, as referring to linguistic rights. The majority’s summary of the reasons for its conclusion as to the interpretation of the phrase legal rights notes that

(i) Never in Canada’s constitutional history have the words “legal rights” been taken to confer linguistic rights;

(iii) The contemporary discussions show that neither Canada nor the representatives of the territories ever considered that the promise to respect “legal rights” in the 1867 Address referred to linguistic rights;

(iv) The contemporary evidence also shows that the territorial representatives themselves considered that their linguistic rights had been assured through the Manitoba Act, 1870, not the 1867 Address or the 1870 Order;

(v) Federal legislation and debates surrounding it in relation to the new North-West Territories in 1875 and 1877 show that no one involved thought that there had been any guarantee of legislative bilingualism in 1870. [4; emphases removed and added]

In other words, the majority’s focus is on the public meaning of the term “legal rights,” and more specifically its meaning to Canadians or Canadian lawyers generally (i, v), the Canadian government (iii, v), and the representatives of the North-West (iii, iv, v).

The dissent, by contrast, favours “original intent originalism,” which focuses on the intentions of the authors of the relevant constitutional provisions. Its review of the historical evidence focuses not so much on how the words “legal rights” would have been understood ― indeed, the analysis of these words takes up a very short portion of the dissenting opinion ― but on what the parties, and especially the inhabitants of the North-West, sought to accomplish. Their wishes, the importance they attached to legislative bilingualism are the dominant considerations for the dissenters. The dissent insists that “our reading of constitutional documents must be informed by the intentions and perspectives of all the parties, as revealed by the historical evidence.” [235; emphasis added] These documents are “a statement of the will of the people” [235] ― and one gets the impression that, for the dissent, the will to which is seeks to give effect is rather more important than the statement itself.

For my part, I prefer the majority’s approach. Prof. Solum’s brief introduction to originalism, to which I link above, points to some problems with the “original intent” version of that theory, which the dissent in Caron illustrates. One issue is the difficulty of ascertaining a collective “intent,” especially among a large and diverse group of constitutional framers or, as in Caron, in a situation where there were different parties with divergent interests involved. Indeed, although the dissent asserts, generally, that “[t]he Constitution of Canada emerged from negotiations and compromises … achieved when parties to the negotiations make concessions in pursuit of a mutual agreement and reach a meeting of the minds,” [235] the 1867 Address, which is, after all, the operative constitutional provision, was not the result of a negotiation at all. It was a unilateral statement by the Parliament of Canada, and it is therefore not obvious that the intentions or aspirations of the people of the North-West are actually relevant to its interpretation.

Another problem with “original intent” originalism, in Prof. Solum’s words, is that “[t]he intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations” as to how the provision will be applied. Assuming the relevant actors in 1867-70 had a unified intent, was it that legislative bilingualism in the North-West would in fact be continued and respected ― as indeed it was for decades ― or that it would also be constitutionally entrenched? Actually, this questions points to a broader difficulty, which affects the majority opinion as much as the dissent, and of which more shortly.

Both of these issues to point to a third one, which is simply that the intent of the framers of a constitutional provision is difficult to ascertain, and that the legitimacy of an intention not codified in the constitutional text itself as a source of constitutional law is very questionable. As I wrote here in connection with Québec’s arguments in l’Affaire Mainville, there is a danger of litigants ― or, I would now add, judges ―

simply taking advantage of the fact that the intent of the framers cannot be known … and using it as a banner under which to carry its own interpretive theory that doesn’t have much to do with the only sign the framers left of their intent ― the text itself.

Be that as it may, I want to reiterate a point that I might have made here before. Denying the significance of originalism to Canadian constitutional law, as both judges and scholars are wont to do, does not actually make it go away. Canadian courts still make originalist decisions, such as Caron, and litigants still make originalist arguments. But, importantly, this all happens in an intellectual vacuum. Because we are only interested in the question whether to do originalism, and have a ready-made negative answer for it, the debates over how to do it, such as those prof. Solum describes in the post linked to above and here, have not happened this side of the border, and the American debates have been ignored. As a result, questionable approaches to constitutional interpretation can endure unchallenged ― even if, as in Caron and in l’Affaire Mainville, they do not prevail when the votes are counted.

I come back to the broader issue I have with both the majority and the dissent to which I referred above. Both opinions assume that, if the “legal rights” which Canada undertook to uphold in the the 1867 Address include linguistic rights, then they are constitutionally entrenched. But it is not clear to me that this must be so. After all, nobody thinks that the (other) “legal rights” that all agree were part of this undertaking, those of property and contract, were similarly entrenched beyond modification by ordinary legislation, whether federal or, eventually, territorial and provincial. Canada respect the rights that existed at the time the North-West was annexed, but did not mean that Parliament or the legislatures created in the territories could not subsequently legislate to modify or even derogate from these rights. Why exactly are linguistic rights different? Neither opinion explains this.

The comparison with ordinary “legal rights” also casts doubt on the dissent’s assertion that legislative bilingualism or language rights more broadly are “not a political issue that can be left up to the government.” [243] Leaving rights to “government” ― or, more accurately, to legislatures ― need not mean that these rights will not be protected at all. To be sure, it may well be a good idea to entrench (some) rights beyond the reach of ordinary legislation. I have myself argued that the framers of the Canadian Charter of Rights and Freedoms erred in not doing so with property rights. But there is no need, it seems to me, to seek to infer the decision to entrench a right from tenuous evidence of intent, or from the desires of those whom this right would benefit. Contrary to what the dissent in Caron suggests, it is not at all clear that injustice results from a failure to do so.

The Caron majority thus arrived at what I believe is the right result, but even its reasoning might be questionable. Moreover, while its approach to originalist constitutional interpretation is better than the dissent’s, it is just as little explained and defended. Still, I hope that this case might give us the impetus to abandon the pretense that originalism has no place in our jurisprudence, and to start thinking more seriously about when, and how, as well as whether, it ought to be employed.

What Did They Mean?

Must the laws of Alberta ― like those of Manitoba (as well as Québec, New Brunswick, and of course Parliament itself) be enacted and published in both French and English? The answer to this question, which the Supreme Court addressed in Caron v. Alberta, 2015 SCC 56, decided on Friday, turns on the meaning of a short phrase in a document soon to be 150 years old.

The Court’s majority, in an opinion by Justices Cromwell and Karakatsanis, found that Parliament’s promise to protect the “legal rights” of the inhabitants of the then-Rupert Land and North-Western Territory did not encompass a guarantee of legislative bilingualism. The dissenters, justices Wagner and Côté (whose opinion Justice Abella joined), begged to differ, repeatedly accusing the majority of committing an injustice. I will summarize the two opinions in this post, and venture some thoughts in a separate one.

* * *

To understand this case, a rather lengthy historical explanation is in order. In 1867, the territories that have since become Manitoba, Saskatchewan, and Alberta, as well the Yukon, the Northwest Territories, the Nunavut, and parts of Québec and Ontario, belonged to and were administered by the Hudson’s Bay Company (HBC). Section 146 of the Constitution Act, 1867, provided for the “admission” into Canada by the Imperial government, on address of the Canadian Parliament, “on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act.” Parliament approved the first such address in 1867, and another one in 1869. The 1867 address stated that Canada would uphold “the legal rights of any corporation, company, or individual” in the North-West ― the phrase on which the issue before the Supreme Court turned.

However, the Canadian annexation plans provoked a rebellion in the Red River Settlement, the main population centre in the North-West, in what would eventually become Manitoba. The rebels formulated a number of conditions on which they would accept Canadian sovereignty. Among them were demands for legislative as well as judicial bilingualism. They also demanded the creation, out of the territories, of a single province of Assiniboia, and made financial demands. 

The Canadian authorities responded, first, by issuing a Royal Proclamation promising among other things that “all your civil and religious rights and privileges will be respected” upon entry into Canada. Under pressure from the Imperial government, they negotiated with delegates from the North-West and eventually accepted that part of the new territories would enter Canada as a new province, Manitoba. The rest would become a federally administered Territory, whose creation was provided for by an Order of the Imperial government, to which the 1867 and 1869 addresses of the Canadian Parliament were annexed. That Order is part of the Constitution of Canada described in and entrenched by section 52 of the Constitution Act, 1982.

In the first years after 1870, the new North-Western Territory was governed as though it were part of Manitoba. The laws enacted (in both French and English) by that province’s legislature applied. Then, in 1875, Parliament enacted a statute setting up a separate territorial government. A requirement of legislative bilingualism was included in that law in 1877, as a result of an amendment moved by a Senator from Manitoba. Legislation enacted in 1891 made clear that the Territory’s legislature could decide which language to use. In 1905, the province of Alberta (as well as Saskatchewan) was created out of a part of the Territory, and eventually it legislated to enact future laws in English only.

If Canada’s undertaking to protect the “legal rights” of the North-West’s inhabitants included language rights, such as legislative bilingualism, then this chain of enactments was invalid. Canada could not allow the North-Western Territory, or its successors the provinces of Alberta and Saskatchewan, to renounce legislative bilingualism, and the provinces had no authority to do so. This was the appellants’ main argument.

* * *

For the Supreme Court’s majority, the phrase “legal rights” does not encompass legislative bilingualism. While the constitution generally “should be interpreted in a large and liberal manner,” [35] and linguistic guarantees are particularly important, “[t]hese important principles … do not undermine the primacy of the written text of the Constitution.” [36] Moreover, it is not enough to

simply resort to the historical evidence of the desires and demands of those negotiating the entry of the territories, and presume that those demands were fully granted. It is obvious that they were not. The Court must generously interpret constitutional linguistic rights, not create them. [38]

Having set out these interpretive principles, the majority explains why in its view they lead to the conclusion that “legal rights” do not include legislative bilingualism. First, “[l]anguage rights were dealt with explicitly in s. 133 of the Constitution Act, 1867 and in the Manitoba Act, 1870 in very similar and very clear terms. The total absence of similar wording in the contemporaneous 1870 Order counts heavily against the appellants’ contention.” [40] Second, “political leaders in the territories themselves expressly provided for language rights when they were meant to be protected and those rights were differentiated from other, more general, rights.” [52] Third, “[t]he parliamentary debates related to the adoption of the 1867 Address show that language rights were not subsumed under the term ‘legal rights’ or ‘droits acquis‘ / ‘droits légaux‘ [which were used in various French versions of the Address].” [53] Rather, “legal rights” referred to property and economic rights. Fourth,

[t]he end result of the negotiations regarding legislative bilingualism was the enactment of the Manitoba Act, 1870. Conversely, it was never the objective of the 1870 Order to dictate that French and English must be used by the legislative body governing the newly established North-Western Territory. [58]

While the delegates from the North-West “sought to entrench bilingual rights, just as … they sought for the territories to enter Canada as a province,” [60] they only succeeded with respect to what became Manitoba ― which, however, is where most of the North-West’s people lived. Fifth, the 1867 Address cannot be taken to reflect an agreement between Canada and the people of the North-West that would not be reached until 1870.

The majority further argues that the events after 1870 confirm that the relevant actors did not understand legislative bilingualism in the North-Western Territory to be a matter of constitutional obligation. Although the amendment establishing bilingualism in the Territory’s government was not contentious, nothing shows that it was perceived as fulfilling a constitutional duty. If anything, the government at the time thought that the matter was best left to the Territory’s legislature ― as was eventually done.

Before concluding, the majority notes that if the appellants were to succeed, legislative bilingualism would be “constitutionally entrenched not only for Alberta, but also for all of the former HBC lands, which now form part of Saskatchewan, Ontario, Quebec, Yukon, Nunavut and present-day Northwest Territories.” [102] Moreover, “[t]he logical extension of this reasoning would also lead inevitably to the conclusion that a variety of other demands made by the settlers have been constitutionalized by the words ‘legal rights,'” [102] including the to entrench the then-prevailing practice of appointing bilingual judges.

* * *

The dissent took a different approach to the issue before the Court. In its view, “[t]he answer to the question whether Alberta is constitutionally required to enact … all its laws in French as well as in English is written across the history of Rupert’s Land and the North-Western Territory” ― and not merely in the phrase “legal rights” in the 1867 Address. Ascertaining the meaning of that step is only the last step of its analysis.

Much of the dissenting opinion consists of an extensive review of the historical evidence. Its authors insist that “the content of the promises conveyed in the 1867 Address cannot be interpreted without reference to the context in which they were made.” [139] This review serves to stress, time and again, the importance of legislative bilingualism to the people of the North-West.

This population, the dissent notes, was composed of both French- and English-speakers; their legislature and their courts used both languages, as did the administrators appointed by the HBC; departures from these practices were met with discontent and resistance. Bilingualism extended throughout the North-West ― it was not limited to what became the province of Manitoba, and as the delegates who negotiated the annexation with the Canadian government represented the people of all the North-West, not only of the Red River Settlement, it would have been been inconceivable for them to limit their demands for legislative bilingualism to that province. Indeed, the Canadian government did not oppose these demands, nor was it in a position to do so, being pressed to conclude an agreement by the Imperial authorities.

For the dissent, the events after 1870 support the existence of a constitutional promise of legislative bilingualism to the people of the North-West. Little changed there in the aftermath of the annexation to Canada, since the bilingual administration of Manitoba exercised power. And once the territorial government was established, it was bilingual in practice, even before bilingualism was required by federal law.

This historical review takes up more than 100 paragraphs in the dissenting opinion. The “Application of the Principles of Constitutional Interpretation to the 1867 Address,” which follows it, fewer than 30. The principles in question “are that the Constitution must be interpreted contextually, that its provisions must be given a broad and purposive reading, and that its nature — as an expression of the will of the people governed by it — is relevant.” [216]

Applying these principles, the dissent concludes that the “historic” “compromise between the Canadian government and the territories’ inhabitants” [222] included a promise of legislative bilingualism. Referring to the French version of the 1867 Address, which spoke of the “droits acquis” ― the vested rights ― of the people of the North-West, the dissent states that “legislative bilingualism was one of these vested rights.” [226] It was also implicitly referred to by the Royal Proclamation, with its promise to uphold “civil and religious rights” ― which thus “recognized the cultural needs of the Métis” [229] of the North-West. That the protection of linguistic rights was not explicit as in other constitutional provisions is not determinative. To hold otherwise would be unjust and incompatible “with the broad and generous approach to constitutional interpretation that this Court has repeatedly taken,” [231] and with the “large and expansive meaning” which the authors of the 1867 Address “attributed … to the[] rights” it contained. [234] Finally, the dissent asserts that, like Confederation itself,

[t]he annexation of the territories … resulted from negotiations between a dominant English-speaking party and a party with a strong interest in protecting the French language. Like the French-speaking minority in the negotiations that resulted in Confederation, the inhabitants sought to have the protection of their linguistic rights entrenched in the Constitution, and this was granted to them. [239]

To give effect to “the will of the people” who enacted it, the interpretation of the Constitution must take their demands into account.

* * *

So much for the opinions. I will try to have some thoughts on them shortly.

Not too Broad

In a decision delivered this morning, the Supreme Court of Canada has upheld the constitutionality of subjecting the members of the Canadian armed forces to the military justice system for all almost offences against acts of Parliament. In R. v. Moriarity, 2015 SCC 55, it ruled that the provisions of the National Defence Act pursuant to which such offences could be tried in the military justice system, regardless of whether the accused was in uniform or on military property when they were committed were not inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms due to overbreadth, as the appellants had argued. In a unanimous decision by Justice Cromwell, the Court held that these provisions were rationally connected to their purpose ― once it was properly understood.

The first issue in a challenge based on s. 7 of the Charter is whether one of the “interests” that it protects ― life, liberty, or security of the person ― is “engaged” at all. Justice Cromwell easily concludes that this is the case here, because the provisions at issue are “part of a scheme through which a person … can be deprived of his or her liberty.” The main question is whether the potential deprivation of liberty pursuant to these provisions would be “in accordance with the principles of fundamental justice.”

Only one principle was said to be offended by the provisions at issue ― that according to which laws must not be overbroad. The Supreme Court’s jurisprudence defines overbreadth as a lack of rational connection between a legal rule’s purpose and its effect. As Justice Cromwell explains, the definition of the purpose is crucial to the overbreadth analysis. A legislative purpose defined too generally, at the level of a value, “will provide no meaningful check on the means employed to achieve it, [because] almost any challenged provision will likely be rationally connected to” it [28]. If, however, “the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them,” [28] ensuring that any law will survive an overbreadth challenge. To steer the middle course between these pitfalls, “[t]he statement of purpose should generally be both precise and succinct.” [29]

All parties agreed that the purpose of making members of the Canadian forces subject to a distinct system of military justice “relates to assuring the discipline, efficiency and morale of the armed forces.” [33] However, the appellants argued that Parliament that the military justice system was only meant to prosecute offences directly connected to the armed forces ― and not those committed by the forces’ members in civilian circumstances. The prosecution, for its part, contended that the military justice system had an additional “public function of punishing specific conduct which threatens public order and welfare.” [47]

The Court rejected both these suggestions. The legislation, it said, was quite clear when it sought to exclude offences committed outside the service from its scope ― as it did for the members of the reserves. Other offences falling within the military’s Code of Service Discipline naturally extend to conduct occurring outside the service. In short, “the overall thrust of the scheme [is] to include offences when committed by an individual subject to the [Code] regardless of what other link may or may not exist between the circumstances of the offence and the military.” Meanwhile, the prosecution’s addition of a broader “public order” purpose would result in confusing the purpose and the effect of the provisions at issue, making the inquiry into the existence of a connection between the two meaningless.

Such a connection existed, the Court concluded. In Justice Cromwell’s words,

Criminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale. For instance, the fact that a member of the military has committed an assault in a civil context … may call into question that individual’s capacity to show discipline in a military environment and to respect military authorities. The fact that the offence has occurred outside a military context does not make it irrational to conclude that the prosecution of the offence is related to the discipline, efficiency and morale of the military. [52]

Criminal behaviour by a member of the military, regardless of when and where it occurs, may also erode the trust and the respect others will have towards him or her. As a result, it is at least rational to prosecute offences committed outside the military context through the military justice system.

This seems fair enough, though the Court’s conclusion is asserted more than argued. Admittedly, the bar of rational connection between purpose and effect is a low one. The Court’s decision is narrow. Justice Cromwell flags some issues it does not address (because they were not raised):

the question of the scope of Parliament’s authority to legislate in relation to “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867 and the scope of the exemption of military law from the right to a jury trial guaranteed by s. 11(f) of the Charter are not before us. [30]

But there is also, arguably, a broader question to be asked about the extent to which an institution to which a person belongs ought to be able to discipline that person for behaviour occurring outside the institutional context, for the sake of maintaining “morale,” or harmony, or respect, etc. It is a question I raised in one of my very first posts, which dealt with a challenge to a punishment imposed by a university to students for a series of Facebook posts. I wrote then that

I can see why a university might be interested in what is being said in its lecture halls, or online on forums it maintains (in connection with courses for example). It does have an interest in maintaining a welcoming, respectful learning environment … But does this interest give a university the right to police the conduct of its students off-campus or online?

The Alberta Court of Appeal, which had decided that case, Pridgen v. University of Calgary, 2012 ABCA 139, had not addressed that question. Here, the Supreme Court concluded that it was rational for the military ― a very different institution from a university, of course ― to do so. But again, rationality is a low threshold, and there is little in the court’s decision that would help us answer the question on the merits in other settings.

This is not a criticism, of course. The Court decided the question before it, and did not have to do more. Its decision, like the provisions it considered, was no broader than it had to be.

Conflict and Frustration

Last Friday, the Supreme Court issued decisions in three cases dealing with the federal paramountcy doctrine, which holds that when both a federal and a provincial statutes are applicable to a situation, the federal one prevails, and the provincial one is rendered inoperative, to the extent ― if any ― of the conflict between them. In this post, I will comment on two of these decisions, Alberta (Attorney General) v. Moloney, 2015 SCC 51, and 407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy), 2015 SCC 52, which deal largely with the specific issue of the kinds of conflict that can arise between a federal and a provincial statute, and how to distinguish between them.

The Court is split, with Justice Gascon writing for a seven-judge majority in both cases, and Justice Côté (with the agreement of the Chief Justice) concurring in judgment but disagreeing about the reasoning. Yet it seems to me that this conflict within the court is quite unnecessary, and only serves to illustrate the unsatisfactory character of the Supreme Court’s jurisprudence on the issue of paramountcy (as well as some other federalism issues not in play in these cases), about which I complained after its previous engagements with this topic in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53 and in Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725.

* * *

The issue in both Moloney and 407 Concession was whether provincial laws which prevented a person from renewing a driver’s license or registering an automobile unless he or she paid back certain debts ― one related to a traffic accident caused while driving uninsured in Moloney and one resulting from an accumulation of unpaid road tolls in 407 Concession ― could be applied to persons whose debts had been released through a bankruptcy. Bankruptcy law is a federal competence, and the federal Bankruptcy and Insolvency Act provides rules governing a bankrupt’s release from all “claims provable in bankruptcy,” which the debts in question were conceded to be. Provincial law, meanwhile, doesn’t force the bankrupt to satisfy these claims but, by making it impossible for him or her to keep driving on the province’s roads, creates a very strong incentive to do so.

All the judges agreed that this amounted to a conflict between federal and provincial law, which triggered the application of the doctrine of federal paramountcy, so that provincial law became inoperative. The provinces cannot refuse to register the vehicles of persons discharged from bankruptcy in order to induce them to pay the debts from which the bankruptcy was supposed to have released them. But, as I mention above, the judges did not agree about the reasons for this conclusion.

For the majority, there existed an “operational conflict” between the federal and the provincial laws at issue, meaning that “it is impossible to comply with both.” [Moloney, 18] The conflict must be “clear, direct or definite,” [22] but in asking whether a conflict exists the court need not limit itself “to the actual words or to the literal meaning of the words of the provisions at issue.” [23] The ordinary methods of statutory interpretation are to be used. In Moloney,

the test for operational conflict cannot be limited to asking whether the respondent can comply with both laws by renouncing the protection afforded to him or her under the federal law or the privilege he or she is otherwise entitled to under the provincial law. … [T]he laws at issue give inconsistent answers to the question whether there is an enforceable obligation: one law says yes and the other says no. [60]

For the majority, this is sufficient for a finding of conflict. Similarly, in 407 Concession, “[u]nder the federal law, the debt is not enforceable; under the provincial law, it is. The inconsistency is clear and definite. One law allows what the other precisely prohibits.” [25]

The concurrence disagreed. In its view, the majority’s

analysis contrasts with the clear standard that has been adopted for the purpose of determining whether an operational conflict exists in the context of the federal paramountcy test: impossibility of dual compliance as a result of an express conflict [and] conflates the two branches of the federal paramountcy test, or at a minimum blurs the difference between them and returns the jurisprudence to the state it was at before the second branch was recognized as a separate branch. [Moloney, 93]

So long as the discharged bankrupt does not drive, the province has no “leverage to compel payment of the debt” and “the literal requirement of the federal statute is, strictly speaking, met. It therefore follows that the two acts can operate side by side without conflict.” [97] The same was true in 407 Concession. Indeed, courts should favour findings of no operational conflict, including by interpreting ambiguous federal legislation narrowly so as to make room for provincial laws to operate alongside it.

In the concurrence’s view, these cases, and perhaps most others where the doctrine of paramountcy is invoked, ought to be analyzed under the heading of the frustration of the purpose of the federal statute. This makes it possible to carefully analyze the purpose of the federal law and to take into account the federal government’s view of whether this purpose is being frustrated by the operation of the provincial legislation, and generally to foster a co-operative approach to federalism that embraces the concurrent operation of federal and provincial laws in the same area.

Ultimately, the concurrence endorses the majority’s view that the frustration-of-federal-purpose test is met in these cases. Bankruptcy law aims at the “financial rehabilitation” of the bankrupt, allowing (and/or providing the incentive for) him or her to re-integrate economic life free from the burden of past debts. Giving the province the ability to demand payment of some debts goes against this purpose. If the bankrupt wants to drive, he or she must pay out; it is as though the debts at issue were not a thing of the past. And while a creditor might be able to “revive” a debt in exchange for fresh consideration, letting a bankrupt drive is not good consideration because the province has no authority to prevent a person from driving on account of his or her failure “to satisfy a … debt that was released in bankruptcy” [81] to begin with.

* * *

Given this ultimate agreement, the apparent conflict between the majority and the concurrence is a bit surprising. Justices Gascon and Côté trade mutual accusations of making one or the other “branch” of the paramountcy test “meaningless” [69; 128], but never actually explain why these accusations are serious ones. What would be lost if the two branches of the test were fused?

Like the doctrine of federal paramountcy itself, the two-branch test used to apply it was created by the Supreme Court itself. Unlike the doctrine, however, it is both a relatively recent creation, and one that can be dispensed with. It seems to me that the “operational conflict” branch of the test can easily be, not just “rendered meaningless,” but abandoned altogether.

To be sure, Justice Côté quotes the majority reasons in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at par. 64, for the proposition that “[c]laims in paramountcy may arise from two different forms of conflict.” But that statement is itself only asserted, not explained. Justice Côté claims that

[w]hile it is true that [these two branches of the paramountcy test] overlap, it is not true that a finding of an operational conflict in the first branch will necessarily entail a finding of frustration of a federal purpose in the second branch. An overlap between the two forms of conflict does not mean the branches are necessarily redundant. [107]

Unfortunately, Justice Côté does not give any examples of situations where an operational conflict would not coincide with a frustration of the purpose of the federal law. She only states that “[t]he federal scheme may be drafted in a manner that does not match the record of Parliament’s intent, but that results in an express conflict with a provincial law,” [107] but the ― purely hypothetical ― possibility of such poor legislative drafting seems like a very weak reason for preserving a legal distinction that will, in practice, (almost?) never make any difference, and yet will generate disagreement and confusion.

It seems to me that the “operational conflict” branch of the paramountcy test should simply be discarded. Impossibility of dual compliance should be regarded as an instance ― perhaps the clearest, but not the only possible instance ― of a frustration of the federal purpose.  What Justice Côté says about the way to analyze frustration of purpose makes sense, at least so long as one accepts the general thrust of the Supreme Court’s federalism jurisprudence which favours what it terms co-operation (but which I believe is actually competition) resulting from the concurrent operation of federal and provincial legislation. But it’s not clear to me that one cannot approach frustration of purpose in the way described by Justice Côté unless one insists on a rigid separation and a narrow definition of the “operational conflict” branch of the paramountcy test.

* * *

In the meantime, the situation is a bit like the one that prevailed in administrative law before Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The Supreme Court had first created a “patent unreasonableness” standard of review, and then, considering that it was too narrow, added an additional one, called “reasonableness simpliciter” ― without discarding “patent unreasonableness.” As a result, courts wasted a great deal of time deciding which of the two applied. Similarly after articulating the “operational conflict” test for the application of the paramountcy doctrine, the Supreme Court concluded that it did not capture all the situations where the doctrine should apply and, instead of simply broadening the test, added another one on top of it. As a result, courts will waste time in inconsequential efforts to figure out which of the two should be applied, before arriving to the same result.

The unsatisfying dispute between the majority and the concurrence in Moloney and in 407 Concession is a reminder, if one was needed, that conflict and frustration tend to go together. The Supreme Court’s attempts to disentangle them serve no useful purpose.

N’importe quoi

Les partis d’opposition à l’Assemblée nationale n’aiment pas le lieutenant-gouverneur du Québec. Peut-être pas personnellement, mais la fonction qui, selon eux, ne devrait pas exister. Et la CAQ pense avoir trouvé une solution au problème que serait l’existence même de cette fonction dans notre ordre constitutionnel (j’expliquerai ci-dessous où exactement la CAQ a fait cette trouvaille) : puisqu’on ne veut pas de lieutenant-gouverneur, eh bien, il suffit de ne pas en nommer un lorsque le détenteur actuel du poste quittera ses fonctions. Or, tout comme l’approche du gouvernement de Stephen Harper (ainsi que du NDP de Thomas Mulcair) au « problème » du Sénat, qui consistait à ne pas nommer de sénateurs, cette « solution » est inconstitutionnelle, en plus d’être pernicieuse.

Il faut dire que non seulement le respect, mais même la connaissance de la constitution canadienne ne semblent pas être le fort de la CAQ. Sa proposition originale (disponible ici, à la p. 12) déclare qu’ «[u]n gouvernement de la Coalition Avenir Québec prônera l’abolition de la fonction de lieutenant-gouverneur. Il laissera en déshérence cette charge jusqu’à ce que […] cette fonction soit définitivement abolie » par un amendement constitutionnel. Or, il n’appartient pas à un gouvernement provincial de « laisser en déshérence » une charge dont le titulaire est nommé par le gouvernement fédéral, en vertu de l’art. 58 de la Loi constitutionnelle de 1867. Quelqu’un à la CAQ semble avoir fini par lire la Constitution, toutefois, puisque ― selon un article du Devoir paru aujourd’hui ― il s’agit désormais de « convaincre Ottawa de ne plus nommer de représentant de la Couronne à Québec ».

Mais il y a plus. Dans l’explication qui accompagne sa proposition, la CAQ prétend citer la Loi constitutionnelle de 1867, plus précisément l’ « article 67 amendé » de celle-ci. Or, si l’article 67 est bien, comme la CAQ l’affirme, la disposition qui permet au gouvernement fédéral de nommer « un administrateur » qui peut exercer les fonctions du lieutenant-gouverneur lorsque celui-ci ne peut le faire, cet article n’a jamais fait l’objet d’un amendement, et le texte cité par la CAQ n’est pas celui qui figure dans la Loi constitutionnelle. La CAQ y va ensuite de l’affirmation suivante:

La «suppléance» de l’administrateur de la province vise en principe à pallier une situation temporaire. Rien n’empêche cependant que cette suppléance se prolonge indéfiniment, en particulier, suivant l’alinéa de l’article 67 amendé de la constitution canadienne, «lorsque le suppléant est une personne expressément nommée à l’avance en cette qualité.» (Statuts révisés du Canada, janv. 1991).

Encore une fois, le texte cité n’est pas celui de l’article 67. En fait, tout ce paragraphe ― et l’idée même de la proposition de la CAQ, y compris le mot « déshérence » ― semble tout droit tiré d’un texte intitulé « Une solution pragmatique à la fonction de lieutenant-gouverneur », publié à une date incertaine, mais apparemment avant 2012, par Gilles Laporte, un professeur d’histoire au CÉGEP du Vieux-Montréal. La CAQ ne le mentionne pas, ce qui fait drôlement ressembler sa position à du plagiat. (Quant à la source dont M. Laporte a tiré ses opinions constitutionnelles non-orthodoxes, il pourrait s’agir d’une page web du Ministère de la justice fédéral consacrée à la rédaction de textes législatifs en français, où le même langage apparaît. D’où vient-il? Mystère, pour moi… )

Bref, les affirmations de la CAQ ne tiennent pas la route. Supposons, cependant, qu’un hypothétique gouvernement caquiste propose à son homologue fédéral de collaborer à son projet. Que devrait répondre le gouvernement fédéral?

Tout d’abord, que ne pas nommer de lieutenant-gouverneur est tout simplement inconstitutionnel. L’article 58 de la Loi constitutionnelle de 1867 exige qu’il ait un lieutenant-gouverneur (le texte anglais, seul officiel d’ailleurs, est encore plus clair à cet effet que la version française: « For each Province there shall be an Officer, styled the Lieutenant Governor […] ». Tout comme M. Harper agissait en flagrante violation de la constitution en refusant de nommer des sénateurs, malgré l’exigence claire du texte constitutionnel à cet effet, un gouvernement fédéral enfreindrait la constitution en se laissant convaincre par la proposition de la CAQ.

Par ailleurs, M. Laporte fait, dans son texte, un parallèle révélateur entre sa proposition et la nomination de sénateurs élus dans des élections provinciales. Or, dans le Renvoi relatif à la réforme du Sénat, 2014 CSC 21, [2014] 1 R.C.S. 704, la Cour suprême s’est dite d’avis que la transformation du Sénat en organe élu qui résulterait de la généralisation de cette pratique serait une modification de l’ « architecture » de la constitution, et ne pourrait se faire que par un amendement constitutionnel. De la même façon, l’abolition détournée de la charge du lieutenant-gouverneur, que vise ouvertement la proposition de la CAQ, est un amendement constitutionnel, qui ne pourrait être adopté qu’en suivant la procédure appropriée (en l’occurrence, celle prévue par le paragraphe 41(a) de la Loi constitutionnelle de 1982).

Par ailleurs, le gouvernement fédéral pourrait ajouter que, même sans égard à son inconstitutionnalité, la proposition de la CAQ est une bien mauvaise idée. L’ « administrateur » qui remplace le lieutenant-gouverneur du Québec pendant son absence est un juge de la Cour d’appel. Qu’un juge puisse exercer temporairement des fonctions vice-royales qui ne sont aucunement discrétionnaire ne pose pas de problème. Cependant, toutes les fonctions d’un lieutenant-gouverneur ne sont pas de cette nature. Le représentant de la Reine peut être à exercer un jugement indépendant, notamment lorsqu’il s’agit de décider à qui confier la formation d’un gouvernement dans une situation où aucun parti n’a de majorité à l’Assemblée nationale. Un tel jugement est aussi, bien entendu, susceptible d’être controversé et critiqué sur le plan politique. Placer un juge dans l’obligation de porter un tel jugement, c’est compromettre son indépendance et l’exposer à des critiques n’ayant strictement rien à voir avec sa fonction première.

J’ai déjà écrit que la décision de M. Harper et l’intention de M. Mulcair témoignait d’une désobéissance flagrante à la constitution et d’un mépris profond pour la primauté du droit. Si j’hésite à qualifier la position de la CAQ de la même manière, c’est uniquement parce que son ignorance de la constitution semble si profonde qu’on ne saurait l’accuser de chercher à désobéir sciemment. Mais à défaut d’être une forme perverse de désobéissance civile prônée par un parti qui aspire à gouverner le Québec, et donc d’y faire respecter la loi et l’ordre, c’est tout simplement du n’importe quoi.

Why Codify (Encore)

In connection with yesterday’s post, in which I discussed the reasons for the codification of the civil law of Lower Canada that were expressed in the preamble of the statute which set up the commission responsible for the codification, my friend Alastair C.F. Gillespie pointed me to some speeches by Sir George-Étienne Cartier who was responsible for that legislation. These speeches confirm, though with some interesting nuances, the motivations expressed in the preamble of the Codification Act ― which mainly had to do with the difficulties the inhabitants and the lawyers of Lower Canada faced in accessing their laws, notably because these laws were most unavailable in English or, sometimes, in French, and indeed, in the case of some French legal sources, unavailable in Canada in either language.

One such speech was delivered upon the introduction in the legislature of the United Province of Canada of the bill that would eventually become the Codification Act. Cartier explained that codification was necessary so that Lower Canada’s “inhabitants of diverse origins” would all know their laws. (130; translation mine, here and throughout.) I suppose this might be a reference to the linguistic concerns that took pride of place in the preamble of the Codification Act and, as I will shortly show, in Cartier’s recollections of his fight for codification. However, the reference is a strangely oblique one, in comparison with the straightforward language of these later sources. I wonder whether it does not make more sense to read this passage as showing that Cartier subscribed to the idea, admittedly more popular with common lawyers than with civilians, that a people’s laws are its customs, its heritage passed on from generation to generation. If people “of diverse origins” live together, each group will only know its own customs, and not those of their fellow citizens ― unless, they are educated by a positive act of legislation. This motive, however, has not made it to the Act’s preamble.

Codification was also necessary, Cartier argued, because “the inhabitants of lower Canada, while they feel the wisdom of the French laws that regulate their persons and their properties, can only study the sources of these laws after immense research, which codification will spare them.” (130) Cartier went on to list the legal instruments which “we do not possess” (130). Legal research in 1857 did, indeed, lack the resources of 2015. This concern was, as I explained in my last post, prominent in the preamble of the Codification Act.

Much later, in 1871, Cartier reminded an (anglophone) audience that before codification, the issue of civil law was a matter of great concern to the “English-speaking inhabitants. All admired the spirit of the system, the gentlemen of the profession as well as the others, but they could not all read the text and understand it for themselves.” (717) Cartier boasted that “[t]o remove this just cause of discontent, I demanded and obtained the revision of our laws of Lower Canada and their printing in both languages.” (717)  Indeed, he added, his response to his opponents among both lawyers and judges was that the codification “was less necessary for the French Canadians than to the English population, and that it was a matter of justice towards them.” (717)

This is an interesting counterpoint to the claims of the 1980s Québec nationalists, who counted “institutions” ― including, perhaps first and foremost, the civil law and, specifically, the Civil Code ― among the markers of Québec’s “distinct society” (alongside language, culture, and history). According to the man responsible for that law’s codification, it was done more for the benefit of the anglophones than for that of their francophone compatriots. Of course, Cartier was a politician, both in 1857 and in 1871, and no doubt chose his words for his audiences. Still, even allowing for this fact, these words are of some interest to us today.