Their Eminences

Commenting on the Supreme Court’s recent decision striking down a mandatory minimum sentence in R. v. Nur, 2015 SCC 15 in the National Post, John Ivison joins the list of commentators lamenting the Supreme Court’s “political” decision-making. The dissent by Justice Moldaver, joined by Justices Rothstein and Wagner, makes him say that

[w]hen three such eminent jurists … warn in such forceful terms that the Court has overstepped its bounds, we are in precarious constitutional territory.

Now Nur (on which I commented here) strikes me as a strange case from which to draw such alarmist conclusions. The majority and the dissent agree on the alleged dangers of guns and gun crime ― the statistics showing such to be rare and declining notwithstanding ― and that Parliament is entitled to impose harsh penalties on people who commit crimes of that sort. They also agree, however, that applying a three-year mandatory sentence to a person who commits a licensing-type infraction would be grossly disproportionate. They disagree on the best way of avoiding this unjust and unconstitutional result ― on the means, that is, not the ends. True, the dissent argues that its proposed means are more respectful of Parliament’s choices. But it is quite clear that if the dissenters did not think that the statute itself provided a way of avoiding the injustice that they, no less than the majority, are concerned about, they would have struck it down. It is worth noting that they do not advocate abandoning altogether the approach of using hypothetical cases to assess the constitutionality of mandatory minimum sentences, but only say that it should not be used when the statute makes it possible ― and, in their view, virtually certain ― that the mandatory minimum will not be imposed. In short, there is no great confrontation of constitutional philosophies here.

In any case, what I find even more puzzling is Mr. Ivison’s “three eminent jurists” phrase. It’s not that I think it doesn’t describe Justices Rothstein, Moldaver, and Wagner well. But weren’t there six eminent jurists on the other side of the case, disagreeing with them? It’s not that the majority must necessarily be right, of course. But when one says ― as I myself do often enough ― that the dissenters’ position is the better one, one should have a reason for this claim. And, at the risk of reading too much into Mr. Ivison’s words, they strike me as at least a hint that these three jurists were somehow more eminent, more deserving of our attention, than their colleagues. But why would that be?

Actually, there is a reason why someone concerned about the Supreme Court’s “politicization” and “overstepping its bounds” might find Justices Rothstein, Moldaver, and Wagner more “eminent” than their colleagues. They are the three who have arguably been the most likely to adopt a more deferential stance, or to refuse to go along with the Court’s expansive readings of the constitution. Thus Justice Rothstein castigated the majority’s broad reading of s. 96 of the Constitution Act, 1867 and reliance on the unwritten principle of the Rule of Law to strike down hearing fees in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. He also dissented from the constitutionalization of the right to collective bargaining in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 and, jointly with Justice Wagner, from that of the right to strike in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4. Justice Moldaver, for his part, wrote a forceful dissent in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, denouncing the majority’s invocation of Québec’s “social values.” Perhaps there are other cases too, but these are the ones that come to mind most readily.

Is it the case, then, that ― whether or not they are more “eminent” than their colleagues ―Justices Rothstein, Moldaver, and Wagner are some sort of a distinct, deferential or “restrained” faction on the Supreme Court? Hardly. Nur is, so far as I recall, the first time that they have been united in urging greater “respect” for legislative or governmental choices than their colleagues showed. In Trial Lawyers, Justice Moldaver was part of the majority, and probably an enthusiastic part, if his questions at the hearing are anything to go by. (Justice Wagner wasn’t part of the panel that heard the case.) Justice Wagner was part of the majorities in both l’Affaire Nadon and in the Mounted Police decision. Justice Rothstein is perhaps a more doubtful case, because he was recused in l’Affaire Nadon and not part of the panel in the Mounted Police and Saskatchewan Federation of Labour cases either. Would we have seen the Rothstein-Moldaver-Wagner alignment in the latter case if he had been? In any event, the three of them joined all of their colleagues in the “by the Court” judgment in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, which added “constitutional architecture,” whatever that is, to the ever-growing list of sources of constitutional law. That’s hardly the stuff of deep commitment to “judicial restraint” ― whatever that too may be.

One can certainly criticize the Supreme Court for going too far in its decisions, for stretching the bounds of the constitution and of its authority, for not respecting Parliament enough. And one can commend judges for blowing the whistle on their colleagues when they do this sort of thing. But so far as the Supreme Court of Canada is concerned, I remain of the view that it is best to make such criticisms on a case-by-case basis, and not as part of some grand narrative about “activism,” “politicization,” or something like that. Just like the eminent jurists who sit on that court are doing, in fact.

A Prayer for Neutrality

This morning, the Supreme Court delivered its judgment in the municipal prayer case, Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, holding that a prayer recited by the Mayor at the beginning of the city council’s meetings, as well the municipal regulation which regulated its recitation, infringed the City’s duty of neutrality and the rights of an atheist citizen, Alain Simoneau. The Court thus delivers a well-deserved rebuke to the Québec Court of Appeal, which had sided with the City in a judgment I suggested bordered on surrealism. The Court’s judgment is almost unanimous, with only Justice Abella not signing onto Justice Gascon’s reasons (the first he has produced alone, and his first for a majority, after his joint dissent in the gun registry case), and only because of a disagreement about standards of review.

Although the City referred to the prayer as “traditional” and sought (successfully at the Court of Appeal) to defend it as a sort of cultural artifact, the prayer was only as old as the City itself ― that is to say that it dated all the way back to… 2002. It was also unmistakably theistic, referring and appealing to “Almighty God.” Besides, as Justice Gascon points out, the mayor and “[o]ther councillors and municipal officials would cross themselves at the beginning and end of the prayer as well.” As for the by-law, it was of an even more recent vintage, having been enacted in 2008, after Mr. Simoneau’s complaint that gave rise to this case had been filed with Québec’s Human Rights Commission.

The first issue Justice Gascon addresses concerns the applicable standards of review. I will not say much about it here, in the interest of (relative) concision. Justice Gascon concludes that, while the Human Rights Tribunal’s holding on the meaning and scope of the state’s religious neutrality must be assessed on a standard of correctness, its other findings, in particular those that concerned the infringement of Mr. Simoneau’s rights and the religious nature of the prayer, had to reviewed on the reasonableness standard. Another preliminary issue was whether the Tribunal, and hence the courts reviewing its decision, could rule on the propriety of the religious symbols present in the halls where the Saguenay council met. Justice Gascon finds that they could not.

The main issues for the Supreme Court were the state’s duty of religious neutrality and the infringement of Mr. Simoneau’s rights (in particular, given the case’s origins in a complaint to a human rights tribunal, his right not to be discriminated against on the basis of religion). The two are closely linked since, as Justice Gascon puts it, “[s]ponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination against all other such traditions,” [64] as well as to a violation of the freedom of religion itself.

Neutrality, Justice Gascon points out, is not expressly guaranteed by either the Canadian Charter or the Québec one. It is, however, the product of “an evolving interpretation of freedom of conscience and religion,” [71] and “requires that the state neither favour nor hinder any particular belief, and the same holds true for non‑belief.” [72] The state’s siding with one group of believers or non-believers necessarily conveys the message that others are disfavoured or unequal. As a result, the state

may not use its powers in such a way as to promote the participation of certain believers or non‑believers in public life to the detriment of others. It is prohibited from adhering to one religion to the exclusion of all others. [76]

This prohibition extends to the state engaging in “religious expression under the guise of cultural or historical reality or heritage.” [78] While Justice Gascon points out that “the Canadian cultural landscape includes many traditional and heritage practices that are religious in nature,” [87] and not all of them are contrary to the duty of neutrality, if the circumstances

reveal an intention to profess, adopt or favour one belief to the exclusion of all others, and if the practice at issue interferes with the freedom of conscience and religion of one or more individuals, it must be concluded that the state has breached its duty of religious neutrality. This is true regardless of whether the practice has a traditional character. [88]

Justice Gascon is careful to specify that “a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals.” [74] Indeed, the state must “encourage everyone to participate freely in public life regardless of their beliefs.” [75] However, the duty of neutrality is infringed in cases “[w]here state officials, in the performance of their functions, profess, adopt or favour one belief to the exclusion of all others.” [84]

Applying these principles, Justice Gascon finds that the Tribunal’s conclusion Saguenay prayer amounted to an endorsement of a specific religious position and thus a breach of the City’s duty of neutrality was reasonable. The prayer was unmistakably religious, and was recited by the mayor, who emphasized its religious character. In Justice Gascon’s view,

the recitation of the prayer at the council’s meetings was above all else a use by the council of public powers to manifest and profess one religion to the exclusion of all others. It was much more than the simple expression of a cultural tradition. … [W]hat is at issue here is the state’s adherence, through its officials acting in the performance of their functions, to a religious belief.  [118-19]

As for the fact that, under the by-law, the prayer was held before the official start of the council meetings, so as to allow citizens who did not wish to be present to leave the room and come back, it only “highlights the exclusive effect of the practice.” [101] In short, the City had “turned the [council] meetings into a preferential space for people with theistic beliefs,” [120] which was a more than trivial form of interference with the religious freedom of others, including of course Mr. Simoneau, the complainant, as well as a form of discrimination against them.

Finally, Justice Gascon dismisses a number of other arguments raised by the City and the interveners who supported it. In particular, he states that preventing the state from endorsing a religious position does not amount to forcing it to become agnostic or atheist. Prohibiting the municipal prayer is simply not the equivalent of forcing the City to deny God. The fact that a prayer is non-denominational does not stop its being religious, and thus non-neutral. As for “[t]he reference to the supremacy of God in the preamble to the Canadian Charter,” it “cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith.” [147]

In the result, the Supreme Court upholds the Human Rights Tribunal’s orders banning the recitation of the prayer and awarding damages to Mr. Simoneau. It also declares the by-law inoperative and invalid, albeit only vis-à-vis Mr. Simoneau, since an administrative tribunal cannot pronounce a general declaration of invalidity.

* * *

Those who recall my criticism of the Court of Appeal’s decision in this case will not be surprised to learn that I am happy with this outcome. More specifically, I am delighted with the Supreme Court’s strong endorsement of the principle of state neutrality, and with its attention to the concerns, which I raised here, about prayer by officials often being

the product of a familiar public choice problem: officeholders using the powers of their office to advance their personal interests and pet causes, not for the benefit of the public, but rather at its expense.

Justice Gascon’s reasons suggest that this is exactly what he saw the Saguenay mayor, Jean Tremblay, as doing. I am equally happy about the Court’s seeing through the mask of “tradition,” “culture,” and “heritage” which it has been fashionable in Québec to use to hide the state’s support for Catholicism. Indeed, it would be nice if Justice Gascon’s clear-eyed discussion of neutrality prompted Québec’s National Assembly to remove the giant crucifix hanging behind its Speaker’s seat ― though I am not so optimistic as to expect such a thing to happen.

Last but not least, I am also happy with the care Justice Gascon has taken to specify that the duty of neutrality applies not to all persons who find themselves in the public sphere, but to the state and to officials speaking for it. To repeat a passage I have already quoted, neutrality reproves ― “the state’s adherence, through its officials acting in the performance of their functions, to a religious belief,” or the officials’ “use [of] public powers to profess their beliefs.” [119] The fact that an official manifests his or her beliefs “on a personal basis” [119] does not matter. To me, this quite clearly suggests that neutrality does not justify efforts to prevent civil servants from wearing religious clothing or symbols. On the contrary, Justice Gascon’s insistence on the state’s duty to welcome the adherents of a variety of beliefs in public life deserves to be emphasized.

That said, while the general thrust of the decision seems to me quite clear, it may not answer all the questions that the concept of neutrality gives rise to. In particular, it does not articulate very clearly the distinction between those religious manifestations which, because of their predominantly cultural character, do not infringe the principle of neutrality, and those that do, beyond saying that intent matters a lot. This may well be as it should be ― it’s not obvious that there can be a bright dividing line between these categories ― but the debates on this topic will continue.

In any case, even if it does not settle every conceivable question, and despite its perhaps lacking in ringing passages that will capture imaginations, one can hardly have expected a better decision than that which Justice Gascon produced. It is impressive that the Supreme Court’s second-newest member has already made such a mark on its jurisprudence. Today is a great day for religious liberty and equality in Canada and in Québec. Amen.

Nothing Is Always Absolutely So

This morning, the Supreme Court has delivered its decision in R. v. Nur, 2015 SCC 15, striking down as “cruel and unusual,” and therefore contrary to s. 12 of the Charter, a mandatory minimum sentence for the simple possession of a restricted or prohibited firearm that is either loaded or stored with easily accessible ammunition, and not properly licensed, where the offence is prosecuted by indictment. The Chief Justice wrote for a six-judge majority, applying the Court’s long-standing approach, in mandatory minimum s. 12 cases, of inquiring into the “gross disproportionality” of the mandatory minimum sentence not only as applied to the offender challenging it, but also as in other cases. Justice Moldaver wrote a forceful dissent (with the agreement of Justices Rothstein and Wagner), suggesting that while even on the majority’s approach the sentence at issue is not unconstitutional, a different one is required in this case.

* * *

The way to analyze the constitutionality of mandatory minimum sentences is, as the Chief Justice explains, first, “to determine what constitutes a proportionate sentence for the offence,” and “[t]hen, [to] ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence.” [46] The question is, however, for whom must the sentence be proportionate: should the court only consider its proportionality for the actual offender before it, or can consider others? The Court had previously adopted the latter approach, described as relying on “reasonable hypotheticals,” but the various governments that intervened in this case argued that it was inconsistent and unworkable.

Not so, the Chief Justice finds. For one thing, the Charter jurisprudence outside the s. 12 realm supports the idea that a court can and should consider the potential violations of the rights of persons other than those before it in determining the constitutionality of a statute. (Interestingly, the Chief Justice does not cite the recent decision in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, where the majority adopted this approach ― but the concurrence, which she wrote, refused to do so!) And for another, it is possible to analyze the application of s. 12 in “reasonably foreseeable” cases ― that is to say, those whose circumstances can reasonably be said to fall within the scope of the impugned provision, whether they have in fact occurred in the past or not, provided that they are not “remote” or “far-fetched” and, in particular, that they do not involve implausibly angelic offenders.

Here, the Chief Justice finds, the impugned provision is indeed capable of reasonably applying to circumstances in which the mandatory minimum punishment it requires would be grossly disproportionate and therefore cruel and unusual, such as the situation, imagined by the Court of Appeal, “where a person who has a valid licence for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence” [79] (to which the licence does not extend). Such situations would not be “truly criminal” ― instead, they more akin to those normally punished by regulatory offences:

Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes, to be sure. But a three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in … the Criminal Code and legitimate expectations in a free and democratic society. [83]

The Chief Justice then rejects a contention accepted by Justice Moldaver: that the Crown’s ability to prosecute those accused of the offence at issue using a summary procedure that does not attract a mandatory minimum (and indeed provides for a maximum punishment of only one year’s imprisonment) means that the mandatory minimum sentence will not, in practice, be imposed in those cases in which it is disproportionate. According to the Chief Justice, this would take away the “inherently judicial function” [87] of sentencing away from judges, and confer it to prosecutors. While prosecutors should “screen out some offences at the lower end of the spectrum captured” by a provision that gives them the choice between proceeding summarily or by indictment, the fact that they can do so is not enough to insulate the provision from Charter scrutiny. The Chief Justice insists that

one cannot be certain that the discretion will always be exercised in a way that would avoid an unconstitutional result. Nor can the constitutionality of a statutory provision rest on an expectation that the Crown will act properly. [95]

Besides, prosecutors could use the threat of an indictment, and the mandatory minimum that it entails, as a “trump card in plea negotiations.” [96]

Having disposed of some other questions that I skip here, the Chief Justice moves on to the question whether the infringement of s. 12 of the Charter can be justified under s. 1. After observing that

[i]t will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1, [111]

the Chief Justice nevertheless inquires into the existence of a rational connection between Parliament’s objectives and the imposition of a mandatory minimum sentence. Remarkably, she concludes, on the basis of “empirical evidence,” that “[t]he government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes.” [113] Nonetheless, “a rational connection exists between mandatory minimum terms of imprisonment and the goals of denunciation and retribution.” [115] However, the imposition of a mandatory minimum for a broad offence that is known to capture some conduct that is not especially blameworthy is not minimally impairing of the s. 12 right, and thus cannot be justified.

* * *

Justice Moldaver’s dissent denies the appropriateness of the “reasonably foreseeable cases” framework favoured by the majority for assessing the constitutionality of mandatory minimum sentences for “hybrid” offences that can be prosecuted either by indictment or summarily. While he agrees that imposing a harsh mandatory minimum sentence on a person whose offence is of the “licensing” variety would be grossly disproportionate, he concludes that “experience and common sense provide proof positive” that it is not reasonable to expect that this would ever happen. There have been no such cases so far, and prosecutors can be counted on to make sure that there will not be.

Justice Moldaver then makes what seems to be a digression on the topic of “respecting Parliament,” claiming that “[g]un crime is a matter of grave and growing public concern.” [131] He refers to what he describes as “compelling testimony from law enforcement about the devastating impact of gun violence across Canada,” [131] heard by Parliamentary committees, and says that “it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture.” [132] Parliament chose to impose substantial sentences for the possession of “inherently dangerous” unlicensed firearms, while leaving open the safety valve of summary proceedings in some cases where these sentences will prove manifestly unjust. It is entitled to have its way.

In any case, says Justice Moldaver, the better way of approaching cases such as this is not by speculating as to what is and what is not “reasonably foreseeable,” but by asking whether the possibility of summary proceedings is an adequate “safety valve” that can help avoid grossly disproportionate sentences in the unusual, least blameworthy cases. If, as here, it is, then, should the prosecution nonetheless proceed by indictment in such a case, the court can find that this decision amounts to an abuse of process, and impose a sentence below the mandatory minimum by of a remedy under s. 24(1) of the Charter. Because the prosecution’s reasons for proceeding by way of indictment are irrelevant to a finding of abuse of process, this approach provides adequate protection to the offenders for whom the mandatory minimum would be excessive. And as, as the power to find that the indictment was inappropriate and thus an abuse of process rests with the judge, this approach does not amount to a renunciation of judicial control over sentencing.

* * *

On the issue of the analytical framework to adopt in s. 12 challenges to hybrid offences, Justice Moldaver’s argument seems powerful. Why bother with imaginary cases ― whether or not they are “reasonably foreseeable” when there is a “safety valve”? I agree that, on Justice Moldaver’s approach, it is indeed the judge, and not the prosecutor who has the last word on the constitutionality of any sentence to be imposed. And the parallel he makes to the approach the Supreme Court took in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, where the Chief Justice, for a unanimous Court, preferred focusing on the constitutionality of an individualized decision made pursuant to a “safety valve” provision is quite compelling. The Chief Justice tries to distinguish Insite on the basis that it was an administrative decision, not one made in an adversarial, criminal-law context, but I am not convinced that the distinction matters very much. What is more questionable is just how well the Insite decision itself fits into the broader context of Canadian constitutional law. It’s an issue I (sort of) flagged just a few weeks ago, as it happens, although I hadn’t thought of its relevance to this case.

That said, not being an expert in criminal procedure, I find it difficult to come to a firm conclusion on the question whether the safeguards proposed by Justice Moldaver will be sufficient to ensure that no persons who do not deserve to be sentenced to the mandatory minimum will in fact be so sentenced. The advantage of the Chief Justice’s approach is, ultimately, that by eliminating the mandatory minimum altogether, it prevents some cases from slipping through the cracks. Not unlike a mandatory minimum itself, it may be a blunt instrument, but an appealing one for the institution who wields it.

Perhaps both the majority and the dissent are aware that their preferred methodologies will result in, respectively, some offenders benefiting from the elimination of the mandatory minimum despite it not being an unconstitutional sentence as applied to them, or some being subjected to it even though it is doubtful whether they should be. At least, this might help explain their excursions into empirical territory ― both of them in obiter and quite unnecessary. The Chief Justice, at least, backs up her claim that mandatory minimum sentences are ineffective. Justice Moldaver, by contrast, only refers to rhetorical claims about the dangers of gun crime, and not to any statistics.

This is, as I noted in my last post, not an uncommon problem in recent Supreme Court decisions, and it is striking just how easily these supported claims turn out to be wrong. An elementary Google search for “gun crime statistics Canada” turns up, as the very first result, a Statistics Canada report on the subject. This report shows that the number of “victims of firearm related violent crime” relative to population has been consistently declining from 2009 to 2012 (Chart 1), and that “firearm-related homicides” have been falling since the early 1990s, and even since the 1970s, occasional year-on-year spikes notwithstanding (Chart 3). In this context, Justice Moldaver’s professed alarm about gun crime is simply unfounded, and his calls for “respecting Parliament,” which allowed itself to be swayed by groundless alarmism ring hollow. (So does the Chief Justice’s assertion that “[g]un-related crime poses grave danger to Canadians,” [1] although it looks like an utterly insignificant throw-away.)

* * *

Ultimately, the respondents’ win on the constitutional issue does them no good. The majority finds that their own sentences are not actually disproportionate to their crimes, and upholds them. Parliament’s mandatory sentences turn out not to be very mandatory. Impressions about the prevalence of gun crime are unfounded. And legal victories sometimes offer no relief to the winners. As Sturgeon’s law has it, nothing is always absolutely so.

About Those Social Values

In its judgment in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, the majority of the Supreme Court notoriously found that one of the roles played by the Court’s Québec judges is to ensure “the representation of Quebec’s … social values on the Court.” [56] In the majority’s view, a disconnect from “Québec social values” was one reason for excluding former members of the Québec bar, such as the judges of the federal courts, from eligibility to the Supreme Court.

Perhaps the three Québec judges had this passage in mind when they wrote their joint dissent in the recent gun registry decision, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14. Although, of course, they ultimately disagreed with the majority on legal grounds ― specifically, about the meaning and normative force of the “cooperative federalism” principle ― their opinion seemed to invoke these “social values” too. For example, it referred to “[t]he tragedy at the École Polytechnique in Montréal on December 6, 1989″ [54] ― a reference which every Québécois reader will understand, but which might not have such resonance in the rest of Canada. Perhaps more significantly, it emphasized the Québécois’ support for the gun registry, from the moment it was proposed ― “[i]n Quebec, there was a consensus that the program would be useful” [57] ― to its abolition, which “[t]he Quebec government” opposed, according to the dissent, “with the support of … much of its population.” [66]

The empirical claim about the support of “much of [Québec’s] population” for the government’s position is unsupported. Perhaps the dissenters thought it unseemly to cite a poll in a judicial opinion, though I’m not sure it would have added very much to the unseemliness of invoking popular sentiment in the first place. But the danger in making such a claim without sourcing and, if I may speculate, probably without even checking it, is that it can turn out to be false. And, as it happens, rather like Justice Cromwell’s recent suggestion, without evidence or justification, that armed robberies have “become depressingly routine,” the claim about the consensus in support of gun registration in Québec is indeed false.

This is perhaps the most interesting finding of a Léger opinion poll released by Le Devoir this morning. At p. 17 of the report, we learn that 48% of the respondents actually oppose the creation of a made-in-Québec gun registry, while only 41% support it. This, despite the fact that all the political parties represented in the National Assembly support a Québec gun registry, as do trade unions, and much of the rest of “civil society.” But what concerns me here is not the fact that Québec’s political and chattering classes who, as André Pratte recently pointed out, do not so much argue for the creation of the registry as assert its necessity and invoke the fictitious consensus in its favour, are apparently out of touch with much of Québec’s society (or, more specifically, much of Québec’s society outside of Montreal).

What does interest me is that the representatives of “Québec’s social values” on the Supreme Court also seem disconnected from the values and opinions actually held by Québec’s citizens. Of course, it may conceivably be that while the citizenry opposes the creation of a new registry, it really was as attached to the old one as justices Lebel, Wagner, and Gascon claimed. But it seems to me more likely that even the federal registry was not much nearer and dearer to the Québécois’s hearts than the prospect of the creation of a provincial one. Why are the Québec judges unaware of this?

If I were really mean, I would say that it’s because, by the logic of the majority’s judgment in l’Affaire Nadon, which implies that leaving the courts or the bar of the province of Québec automatically makes one lose touch with Québec’s social values the sitting Québec judges cannot actually possibly discharge their mandate as Québec’s representatives. (It’s worth pointing out that, as I noted here, the Québec government accepts this logic, and has argued before the Québec Court of Appeal that one of the Supreme Court’s Québec judges could not sit at the province’s Court of Appeal. It will be interesting to see whether it sticks to its guns before the Supreme Court, and whether the Court itself accepts this implication of its holding.) However, as those who recall my criticism of the majority’s opinion in l’Affaire Nadon will have guessed, I do not subscribe to this view.

Rather, this situation seems to me to highlight the flaws of the logic that animated that opinion. For one thing, as the findings of the Léger poll suggest, there is not necessarily a great deal of consensus about what Québec’s social values are. This is not at all surprising ― the same could be said of any other open society. While nationalists ― again, in Québec as elsewhere ― like to exaggerate the degree to which the members of society agree among themselves and disagree with outsiders, we should be wary to claims to this effect. And in the absence of consensus about what “Québec’s social values” are, it is, to say the least, not clear how the people who are somehow supposed to “represent” them are supposed to do that. And then, there is the fact ― which most observers of the legal system seem to take for granted, but which somehow escaped the notice of the Supreme Court’s majority ― that judges, of all people, do not make very good representatives of their society. As I noted here, “[e]ven the average judge should be nothing like the average Joe, or the average Jane.” Judges ― especially the judges of the Supreme Court ― are members of a professional elite and, more broadly, of an urban upper class. It is not realistic to expect them to be attuned to the “social values” of their fellow citizens.

The Supreme Court’s decision in l’Affaire Nadon was badly wrong. Some of its negative consequences ― notably its  effects on the federal courts ― will be very difficult to mitigate. But there is no need for the Québec judges to take the idea of “representing” their province’s purported “social values” too seriously. They could not do it with the best will of the world, and even it were an appropriate thing for a judge to do. They should not even try.

Les légitimités et le droit

Un récent billet de Pierre Trudel illustre bien certains problèmes dans une pensée, malheureusement, commune face au conflit « étudiant » qui sévit actuellement dans quelques universités et collèges du Québec. Se présentant comme une position de compromis entre l’immobilisme gouvernemental et irrédentisme des associations étudiantes pro-grève, cette pensée réclame l’ « encadrement » d’un droit de grève étudiante, au sujet duquel il existerait une ambiguïté, par voie législative ou, à défaut, par règlement imposé dans le contrat d’études. Or, cette pensée, même si elle est souvent véhiculée par des juristes, dont le professeur Trudel, fait l’économie de certains principes juridiques fondamentaux. Le soi-disant compromis qu’elle propose n’en est pas un.

Le prof. Trudel écrit que

[d]eux légitimités sont en présence: d’une part la légitimité dont se réclament les associations étudiantes, accréditées en vertu de la loi pour défendre les intérêts collectifs de l’ensemble des étudiants et d’autre part, la légitimité dont se réclament les individus qui invoquent le contrat qui existe entre chaque étudiant et son institution d’enseignement. De part et d’autre on revendique la légitimité, l’affrontement est inévitable. On connaît la suite, on vit les perturbations, la confusion, la judiciarisation du conflit et la violence.

Ces conséquences néfastes seraient, selon lui, évitées si le droit de grève était reconnu aux associations étudiantes, par loi ou règlement, puisque « [c]ela rendrait pratiquement impossible les recours judiciaires afin de rendre inopérantes les décisions des associations étudiantes ». En contrepartie, il faudrait aussi encadrer la façon dont les votes de grève sont tenus.

Le prof. Trudel a certes raison d’affirmer que « deux légitimités sont en présence ». En fait, dans une société, il y a au minimum autant de légitimités qu’il y a de citoyens, dont chacun est un être libre et porteur de droits inaliénables. Cependant, il y a aussi des légitimités additionnelles créées par des associations de ces citoyens libres, qu’elles soient « accréditées en vertu de la loi » ou aient une existence, pour ainsi dire, propre (telles des églises). L’idée que chaque individu et chaque association volontaire d’individus est, a priori, libre est le principe philosophique fondamental duquel je pars.

Ce principe philosophique se reflète dans celui, juridique, que tout ce qui n’est pas interdit par la loi est permis. Autre principe philosophique et juridique fondamental : c’est l’État qui, par le droit, règle les conflits entre les légitimités présentes dans la société. Mis ensemble, ces deux principes ont comme corollaire le principe supplémentaire voulant que, pour contraindre un individu (présumé libre!) au nom du respect d’une légitimité concurrente à la sienne, une autorisation juridique est nécessaire. Cette autorisation juridique peut prendre plusieurs formes ― loi, règlement (autorisé par la loi), contrat (autorisé par la loi ou la common law), etc. ― mais elle est une condition sine qua non de la contrainte légitime.

Ces principes élémentaires permettent de rejeter l’idée qu’il existerait, en ce moment, une quelconque ambiguïté au sujet d’un prétendu « droit de grève » des étudiants qui leur permettrait d’empêcher leurs confrères d’assister à leurs cours. Puisque ni la loi ni aucune autre source juridique n’accorde pas un tel pouvoir coercitif aux associations étudiantes, elles ne l’ont pas. Il est donc faux de parler de confusion, du comme s’il s’agissait d’une conséquence normale de l’état actuel du droit. Si confusion il y a, elle n’est due qu’à ceux qui prétendent faussement que le défaut du législateur à autoriser les associations étudiantes à contraindre laisserait la question de l’existence de ce pouvoir sans réponse. Et il est tout aussi erroné de déplorer la « judiciarisation du conflit ». Le droit, y compris bien sûr les institutions judiciaires, existe justement pour régler des « conflits de légitimité », et lorsqu’une partie à un tel conflit ignore le droit, l’autre est justifiée de recourir aux tribunaux pour le lui rappeler.

Cela ne règle évidemment pas la question de savoir si les associations étudiantes devraient se voir accordé un pouvoir coercitif. Avant d’en dire quelques mots, il faut, tout de même, souligner qu’autoriser les associations étudiantes à imposer leurs décisions collectives à ceux qui ne sont pas d’accord avec ces décisions représenterait bel et bien un changement important du droit, et non seulement l’éclaircissement d’un flou ou l’élimination d’un vide juridique.

Il faut aussi aborder la question, soulevée par le prof. Trudel, de savoir comment ce changement devrait se faire, si tant est qu’il est juste et opportun. L’adoption d’une loi serait certes un mécanisme approprié. Qu’en est-il, toutefois, de la modification, par règlement universitaire, du contrat d’études, solution de rechange proposée par le prof. Trudel? À cet égard, je soulignerais simplement que le contrat d’études en est un d’adhésion et qu’on devrait, à tout le moins, hésiter avant de soumettre une personne à un pouvoir coercitif par un tel contrat. Même si l’imposition d’une obligation de respecter un mandat de « grève étudiante » par contrat d’adhésion ne serait pas abusive au sens de l’article 1437 du Code civil, et donc nulle, sur le plan moral, il faudrait tout de même avoir une bonne raison pour la justifier ― tout comme une loi au même effet, du reste, car une loi, bien plus encore qu’un contrat d’adhésion, oblige ceux et celles qui ne sont pas d’accord avec elle.

Existe-t-il une telle raison? Le fardeau de persuasion repose, me semble-t-il sur ceux qui proposent de changer le droit, non seulement parce que c’est généralement le cas en matière de changements juridiques, mais aussi, et surtout, parce que le changement en cause vise à limiter la liberté de personnes qui ne consentent pas à l’imposition d’une telle limite. Or, le prof. Trudel ne fournit aucune raison qui le justifierait, sinon que la reconnaissance d’un pouvoir de coercition aux associations étudiantes permettrait de régler le conflit actuel. Or, accorder un poids quelconque à cette justification reviendrait tout simplement à céder à la violence de ceux qui ignorent le droit actuel, et donner à tout groupe minoritaire et contestataire une raison de recourir à la perturbation, voire à la force, dans l’espoir que la volonté de préserver la « paix sociale » mènera les autorités à faire droit à leurs revendications. Ce ne serait pas un compromis, mais une capitulation.

Par ailleurs, invoquer la « démocratie » étudiante ou la volonté d’une majorité comme justification d’un pouvoir coercitif ― ce que le prof. Trudel ne fait pas, si je le comprends bien ―  ne serait qu’une pétition de principe. La question est justement de savoir si la majorité devrait avoir ce pouvoir là. Dans un État constitutionnel, même la majorité des citoyens n’a pas tous les pouvoirs. Une majorité doit toujours justifier les pouvoirs qu’elle réclame face à ceux qui ne sont pas d’accord pour les lui octroyer.

Je laisse aux défenseurs de la coercition des associations étudiantes le choix de la justifier. J’aimerais seulement leur rappeler que, comme le souligne fort justement Simon Langlois dans le Devoir,

[l]’université n’est pas au service d’une cause, d’une Église, d’un parti, de l’État, des entreprises, d‘une idéologie dominante ou encore d’une classe sociale. Telle qu’on la connaît aujourd’hui, l’université est d’abord un lieu d’enseignement et de recherche […].

Stanley Fish a souligné, à moult reprises (par exemple, dans ce billet), que les professeurs qui remplacent, de façon plus ou moins transparente, leur enseignement ou leur recherche par l’activisme à la faveur d’une cause ou d’une idéologie abusent de leur liberté académique et se détournent de la mission de l’université. « Save the world on your own time », leur dit-il. Or, on peut fort bien dire la même chose aux étudiants qui, en réclamant la reconnaissance de leur « grève sociale », cherchent eux aussi à abuser de leur position au sein des institutions académiques pour faire avancer des causes n’ayant que peu, voire pas, de liens avec la mission de celles-ci.

Courts and Eligibility to the Senate

I wrote something stupid here earlier. I thought it was very clever, of course. But I didn’t read the Constitution Act 1867, carefully enough. Of course the courts cannot pronounce on the qualifications of a sitting Senator, as Aniz Alani was kind enough to point out to me.

Making a public fool of oneself is an occupational hazard of blogging, of course, and the reason why many smart people say one should not do it, or at least why one should wait for tenure to do it. But since I’m a fool, the advice is lost on me. Reader beware though.

Politicians in Robes?

I have a new post up at the CBA National Magazine’s blog, in which I summarize and discuss a most fascinating study by Dan Kahan and his colleagues at Yale’s Cultural Cognition Project. The study tried to establish, empirically, whether judges, lawyers, law students, and members of the general public would be influenced in the same way by their ideological inclinations in solving hypothetical legal problems (both of which involved statutory interpretation).

What it found was that while the members of the public are indeed swayed by politically salient but legally irrelevant facts introduced into the hypotheticals, lawyers and judges are not. Law students fall somewhere in between the public and the professionals. The study hypothesizes, persuasively in my view, that it is professional training and experience ― of whose effects it provides a very useful account for those of us not schooled in psychology and cognitive science ― that explain this difference.

The study is also valuable for making clear a difference that too often goes neglected by both the critics and the supporters of judges. It points out that its findings do not mean that judges and lawyers approach legal problems free from any ideological influences whatever. Rather, it is important to distinguish ideological commitments that are an inextricable and perfectly legitimate part of the law, and those that are not. The study provides the view that competition law should be oriented towards consumer welfare as an example of the former. This view is, or was at a certain time, not uncontested; it can be meaningfully described as ideological. But competition law must have some view of its ends if it is to function, and any such view is ideological in that sense, so saying that a judge is influenced by “ideology” as a description of his or adopting one such view isn’t actually all that interesting. By contrast, a judge resolving the same issue differently due to the identity of the parties to the case could be a sign of improper ideological influence. Existing “empirical” scholarship tends to focus on, or largely detects, ideological influences of the former, less interesting sort. This one tries to pick out the latter ― and fails, concluding that judges are not, contrary to an all-too-common stereotype, just “politicians in robes,” which should be source of great relief to those of us who believe in the Rule of Law.

There is a lot more to the study though and, I dare say, even to my comment on it. Please give them a read.