Law and Innovation, Again

In my July post for the National Magazine’s blog I wrote that the decision of Ontario’s Superior Court rejecting the attempt by the city of Toronto to stop Uber operating there without a “taxicab broker” license was a reminder of the fact that technological innovation often challenges the law not directly, but by enabling innovative business models. In a recent post for the Hoover Institution’s Defining Ideas, Richard Epstein offers a similar argument, and draws similar conclusions from it.

Prof. Epstein’s post, as it happens, was also prompted by litigation against Uber ― this time in California, where an administrative tribunal recently concluded that its drivers were “employees” and thus entitled to certain benefits. (It is worth noting that New York City’s authorities have since taken the contrary position.) Prof. Epstein points out that

There is no question that [“sharing economy”] platform systems require a contractual framework for a three-party relationship that is not found in the playbook of traditional industries, where there is a direct relationship between the party that supplies the goods and services and the party that requests them.

The law, says prof. Epstein, has a choice in how to respond to the situation. It can let the market work out new forms of contractual relations, which might combine elements of pre-existing standard arrangements (such as the employment contract) if the parties want it. Alternatively, it can try to simply fit new commercial relationships into the pre-existing forms.

For prof. Epstein, the choice is clear:

it is a hopeless task to apply traditional regulatory structures to modern arrangements, especially when they block the implementation of new business models. Indeed, it is necessary to go one step further: it makes no sense to apply these regulatory statutes to older businesses, too. Time after time, these statutes are drafted with some “typical” arrangement in mind, only for the drafters to discover that they must also try to apply the statutes to nonstandard transactions that do not fit within the mold.

No disagreement from me. Here’s what I had written last month:

[t]he law ― including the regulation of taxis ― is written with specific business models in mind. When the business models in question are no longer the only ones around, the legal rules based on the assumption that they are lose their efficacy.

We should, I said, resist “[t]he temptation to expand the scope of the existing regulations, to close the ‘loopholes’ opened up by innovation,” and take “the disruptions caused by innovation … as an opportunity to ask whether any of the arguments for the old rules … still apply.”

But if you didn’t want to take it from me then, you should take it from Prof. Epstein now.

Living with Imperfect Judges

The arguments about limiting appointments to the Supreme Court to bilingual candidates are rather tired, not to mention more or less moot. But they keep coming back, over and over again. I actually wrote about the topic a while ago, but since it is in the news again, following the appointment of (the apparently bilingual) Justice Brown, and since not all of my readers are bilingual themselves, it might be worth returning to.

The first thing to say here is that, as I have already noted, the Supreme Court’s opinion in l’Affaire Nadon, 2014 SCC 21, [2014] 1 S.C.R. 433 means that any legislation to add bilingualism to the list of requirements for Supreme Court appointments would be unconstitutional. The criteria, as they now exist, have been set in stone by the Court’s conclusion that they are part of the “Constitution of Canada,” and more specifically of the “composition of the Supreme Court of Canada.” It would take a constitutional amendment supported by every province to change them.

Of course, that does not make it impossible, or necessarily wrong, for a Prime Minister from making it his policy, even publicly declared policy, to only appoint bilingual candidates. Indeed, there is nothing to prevent such practice, if continued long enough (and by more than one Prime Minister), from becoming a constitutional convention. So the question whether instituting such a practice, and trying to foster such a convention, would be a good idea.

The argument in favour of requiring bilingualism is that it is imperative that a judge be able to understand the parties appearing before him or her. To be sure, the Supreme Court has a translation service, including simultaneous translation at the hearings, but that’s not good enough. Translators can make mistakes, and when the fate of a litigant, and sometimes even of the country, is at stake, it is unconscionable to allow the outcome of a case be affected by such things. This seems compelling enough, until we start asking more precisely what it is that the proponents of mandatory bilingualism want, how they plan to achieve it, and what the cost of doing so would be.

It is good and well to say that a judge must understand those who appear before him, but what level of understanding is enough? Is fluency mandatory, or is a lesser level of proficiency sufficient? Grégoire Webber, perhaps the only person I have seen address this question, says “legal competency in language is satisfied by understanding a case without the aid of an interpreter” ― a standard that strikes me as very vague. A person might think that he or she does not need the assistance of an interpreter, and yet be mistaken about this, or at least end up with a worse understanding of the case than if he or she had relied on an interpreter.

Partly for this reason, it matters how we are going to determine whether a judge meets bilingualism requirements, whatever they are? Will we rely on an appointee’s say-so, or are we going to have them take the civil servants’ exams? Is having a judge take an exam, especially one where evaluation is, in part, discretionary and where so much is at stake, ever a good idea? Can it be squared with judicial independence? At the very least, those who clamour for bilingualism requirements owe us answers to these questions. They have seldom, if ever, given any.

However, even if these questions could be answered in a satisfactory fashion, a policy of mandatory bilingualism would come with significant downsides. Fears, such as those of the National Post’s editorial board, that it would become well-nigh impossible to appoint judges from the non-bilingual parts of the country are clearly overblown (as the appointment of Justice Brown seems to demonstrate). But it is true that the pool of eligible candidates would become a good deal shallower than it now is. Among the current judges, the Chief Justice and Justice Moldaver (as well as Justice Rothstein, whom Justice Brown will replace) could not have been appointed under a mandatory bilingualism rule. I think this has to be acknowledged as a clear loss. Both the Chief Justice and Justice Moldaver made efforts to learn French since their appointments, by the way ― the Chief Justice, at least, with considerable success, so much that she is now generally regarded as bilingual. Still, it is a mistake to forget that she was not bilingual when she was first appointed. And more generally, as I said in my earlier post on the subject, to the extent that a unilingual candidate is regarded as better qualified than a bilingual one, is there not an injustice involved ― an injustice to all the litigants who will appear before the court ― in not appointing him or her?

Prof. Webber argues that linguistic competency is an aspect of legal competency, and that there is therefore a loss of quality involved in appointing unilingual judges. I agree with that. If I were in the business of appointing judges to the Supreme Court, I would consider any evidence of their bilingualism as a major strength, and evidence of the contrary as a weakness. But I would keep in mind the fact that judicial appointments inevitably involve tradeoffs. A prospective judge might be a brilliant criminal lawyer, but know relatively little about commercial law. Another can be an expert on the civil law, but have only limited notions of the common law. Such judges are therefore, far from perfect ― but sometimes, far from perfect is the best we can get. There is no Hercules hiding out there within the ranks of the Canadian legal profession, awaiting a Supreme Court appointment. Similarly, lack of linguistic skills is a flaw in a potential judge ― but I would not foreclose the possibility that a candidate who has this flaw nonetheless represents the best balance of flaws and qualities available, or the one that is most adapted to the present needs of the court to which he will be appointed.

To be sure, I think it is incumbent on newly-appointed judges to be aware of their shortcomings, and to do their best to remedy them. Given the breadth of the Supreme Court’s jurisdiction, no judge can be expected to be an expert in all the areas of the law that may be relevant to its work, but all judges can be expected to try to fill the gaps in their legal knowledge. And in the same way, I think it is fair to ask that judges who do not speak or understand one of the Court’s languages try hard to learn it ― exactly as the Chief Justice has done and Justice Moldaver is doing. But it would not be fair to expect all to succeed perfectly.

There are good reasons why appellate courts are multi-member institutions. One of these reasons is that, the judges all have their strengths and weaknesses, and the strengths of some can help mitigate the weaknesses of others. In the context of the Supreme Court of Canada, unilingualism is a weakness. As some the current judges prove, it is not an incorrigible one even at the individual level but, more importantly, this weakness can be remedied by the institution. It would be great, of course, if the Supreme Court’s bench consisted of nine fluently bilingual experts on every part of Canadian law. But realistically, we must make do with imperfect judges. Among the many judicial imperfections, I do not think that unilingualism is a uniquely disqualifying one.

Who Are These People?

I wrote yesterday that the “conservative judicial appointments” narrative that the Globe and Mail’s Sean Fine has spent the last several months developing was essentially unsupported by the evidence. A few hours after I published my post, there was a new judicial appointment ― that of Justice Russell Brown to the Supreme Court ― and Mr. Fine got busy penning another “Tory judges” article. My own impression after reading it is that Justice Brown is brilliant, independent-minded, and universally respected ― but Mr. Fine does his best to make his appointment sound somehow sinister all the same.

There is one element of Mr. Fine’s latest piece that I want to comment on ― its reference to “liberal” and “conservative” judges. He describes Justice Brown as a “conservative judge,” and says that his appointment “will not alter the balance between conservative and liberal members of the court.” But what does this mean? Mr. Fine doesn’t actually offer any definition and we are, mostly, left to guess.

Mr. Fine did offer a definition of what “conservative” judges were in his lengthy “exposé” of the alleged Conservative “remaking” of the Canadian judiciary, published last weekend. He said that

[i]n Canada, judicial conservatism tends to mean judges who accept the wishes of legislators – judges who defer to Parliament’s primary role as lawmaker and are reluctant to find fault with a government’s choices.

But, as I wrote yesterday, there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers. Besides, what Mr. Fine says about Justice Brown ― specifically, the fact that he supported a group devoted to advocating for property rights and limited government ― makes me wonder whether he is really “conservative” in the above sense. What is it, then, that makes Justice Brown a “conservative judge,” and some of the current Supreme Court judges “conservative”? Ditto for their “liberal” colleagues.

In the United States, these terms have a relatively settled, well-understood meaning. Some decisions ― for example, in favour of criminal defendants, in favour of the federal government and against the states, or in favour of unions ― are considered “liberal.” The opposite decisions are “conservative.” A judge who votes for “liberal” outcomes is liberal; a judge who votes for “conservative” outcomes is conservative. It’s a crude measure, because it ignores the facts of the cases as well as precedent and other constraints on judges, but it is pretty popular in some quarters.

Yet as I explained over at the National Magazine’s blog, attempts to classify Canadian judges as “liberal” and “conservative” in this way are unlikely to yield meaningful results. We don’t see legal issues through the same ideological prism as the Americans do. Are decisions in favour of the provinces and against the federal government ― for example in the Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, or Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704 ― conservative? Americans might think so, but Stephen Harper, for one, would beg to differ. Yet are such decisions “liberal” in any meaningful sense? I don’t think so either.

I suspect that Mr. Fine is not actually thinking in these terms either. Rather, he is probably using an even cruder way to count judges as “liberal” or “conservative” ― by using the party of the Prime Minister who appointed them as a proxy for their ideology. This, after all, was essentially the thrust of his weekend “exposé” ― the judges appointed by the Conservative government are conservative, even though, as Emmett Macfarlane noted, a grand total of two of them could plausibly be described as ideological conservatives. Yet as I also explained in the National Magazine post linked to above, this approach doesn’t work in Canada either:

In contrast to the situation in the United States, there are not, in Canada, two (or three, or more) distinct legal worldviews, each associated, more or less firmly, with a political party. I have argued elsewhere that ― paradoxically given their complaints about allegedly “liberal” judges, and in contrast to the situation in the United States ― the Harper Conservatives have not even tried to articulate an alternative, “conservative” constitutional theory. They are not alone. The Liberals do not have much of a constitutional theory either, except for a tendency to wrap themselves in the Charter; nor does the NDP. And outside of the realm of constitutional law, the parties have, if anything, even fewer legal ideological commitments.

In short, though there are Liberal-appointed and Conservative-appointed judges (as well judges appointed by governments of one party and promoted by those of the other, like Chief Justice McLachlin!), there are no “liberal” and “conservative” judges. That does not mean, as I have said before, that Canadian judges are free from ideological commitments. But these commitments are not adequately captured by labels imported from the US, and liable to do particular mischief in Canada because here, unlike in their country of origin, they track names of actual political parties, which risks creating the utterly unwarranted impression that judges are political partisans. And if Mr. Fine meant something else, he really owed it to his readers to explain what it was. Who are those liberal and conservative judges he is talking about?

What’s the Big Deal?

The Globe and Mail’s Sean Fine has for months been pushing a “conservative judicial appointments” narrative, and he was back at it this weekend, with a lengthy piece on “Stephen Harper’s Courts.” We are, I take it, supposed to be worried about a “judiciary [that] has been remade” by ideologically shaped appointments. Mr. Fine quotes quite a few people who are worried and further reports on calls for the appointment process to be revamped to purge it of nefarious ideological influences. But for my part, I see very little that is objectionable in what Mr. Fine reports. Not only is there, as Emmett Macfarlane has pointed out, very little evidence of a conservative remaking of the judiciary, but if or to the extent that a remaking has occurred, there is nothing objectionable about it.

The one disturbing fact that Mr. Fine presents is that some sitting judges actively lobby the government for promotions. Such lobbying, it seems to me, creates a real danger that the judge will try, whether consciously or not, to ingratiate himself with the government in his or her decisions. In other words, it creates an appearance of bias if not actual bias. Judges should strive to remain above such suspicions. The possibility of promotion is a weak spot in the arrangements protecting judicial independence, and judges themselves should not be exploiting it.

There is nothing improper, however, in a government seeking to appoint judges with whose ideological leanings it is comfortable. Of course, judicial appointments should be merit-based ― in the sense that every person appointed to the bench should deserve to be, by virtue of his or her accomplishments and character. But that’s just threshold. Ideology, in my view, can properly be taken into account in deciding whom to appoint among the candidates who can get over that threshold. (It’s worth noting that, as Mr. Fine points out, the committees that screen applicants for judgeships rate many more as “recommended” ― and used to rate more as “highly recommended” when that was an option ― than there are positions available).

Now we should keep our sense of perspective about this. As prof. Macfarlane has pointed out, Mr. Fine mentions a grand total of two judges (Grant Huscroft and Bradley Miller) who can fairly be described as ideological conservatives. The rest of Mr. Fine’s “remaking the judiciary” case is built on the appointment of judges said to be not so much conservative as deferential, to Parliament and to precedent. But there is nothing inherently conservative about deference. A deferential judge will give way to Parliament or precedent regardless of whether they are “conservative” or “liberal” or something else.

That said, even to the extent that some of the judges appointed by the Conservative government are indeed ideologically conservative, there is nothing wrong with that. As I have argued repeatedly here and elsewhere, judging is in part an ideological activity, and Canadian judges, whether appointed by Mr. Harper or by any of his predecessors, are not free from ideology. We might like to think that they are, and that the core tenets of our legal system, such as the “living tree” approach to constitutional interpretation, on which Mr. Fine dwells in his article, are somehow natural and value-free. But that is an illusion. “Living tree” interpretation is no less of an ideological commitment than originalism, albeit one that most Canadian lawyers share most of the time (though by no means always, as I have pointed out here and Benjamin Oliphant, more recently, at Policy Options).

Given that no matter what judges the government appoints, it will  always be appointing judges whose decisions will, in part, be influenced by their ideology, I don’t see anything wrong with governments wanting to appoint judges who will be influenced by what they see as the right ideology. Indeed, like prof. Marfarlane, I think that it is a good thing that the current government has been able to inject at least a modicum of ideological diversity into the Canadian judiciary. As I wrote in response to one of Mr. Fine’s earlier articles,

[t]he lessons of Jonathan Haidt and his colleagues’ work on the mischiefs of ideological uniformity, about which I recently wrote over at the National Magazine’s blog, are relevant to courts as well as to the social sciences. Precisely because ideology affects adjudication, more ideologically diverse courts will produce better argued decisions, in the same way, as prof. Haidt et al. show, as an ideologically diverse academy will produce more solid research.

As I also wrote in that post, an individual judge actually has very little power except that of persuading his or her colleagues or, in the case of lower court judges, hierarchical superiors. Are the people who decry the appointment of some judges seen to be ideological outliers actually worried that these few judges, despite being a small minority, will convince other judges that they are right?

What would indeed be worrying is evidence to support David Dyzenhaus’s assertion, quoted by Mr. Fine, that “that the appointment of judges is from a very small pool of lawyers,” resulting in a lower-quality bench. Now it is no doubt true that, as prof. Dyzenhaus says, “people of considerable ability are being passed over.” But that in itself is not a problem, so long as are more able candidates than positions on the bench. And Mr. Fine present no proof that that is not so. That said, it is worth noting that the Conservative government, or the broader conservative movement, have done nothing at all to broaden the pool of genuinely conservative lawyers whom they could appoint to the bench. As I pointed out here, they neither articulated much of an ideology, nor created any sort of organization that might do so, like the Federalist Society did in the United States. But those from whom ideological diversity on the bench is a source of concern can take comfort in the Conservatives’ laziness.

In short, there is little evidence of impropriety in the Conservatives’ handling of judicial appointment, at least Mr. Fine describes it. (Ironically, his piece does not even mention what is arguably the most serious charge against them in this regard ― their notorious reluctance to appoint women to the bench.) Similarly, there is no evidence in Mr. Fine’s piece that we need to change the judicial appointments process. Indeed, I would go so far as to say that attempts to “depoliticize” that process are a bad idea insofar as they will prevent a government from pushing back against the ideological homogeneity of the judiciary. Such pushback, far from being a problem, is a good thing that will improve the quality of the bench and of the decisions Canadian courts render.

Making Sense of Constitutional Crises

Not surprisingly, my suggestion that the Governor General dismiss Stephen Harper as Prime Minister for his (Mr. Harper’s, that is) unconstitutional policy of not appointing Senators turned out to not to be any more popular than my earlier suggestion that the Governor General just appoint Senators on his own, without the Prime Minister’s blessing. That idea was met with admonitions about the importance of the conventions of responsible government, said to be such that it is better for the Governor General to dismiss a Prime Minister who fails to give constitutional advice than to act on his or her own. But no one really wants the Governor General to dismiss the Prime Minister, for doing so would trigger, it is said, a constitutional crisis. It is not, Andrew Coyne said, a sensible thing to do.

Triggering constitutional crises is, indeed, a dubious idea. The trouble ― and really the key point of my last post ― is that we already are in a constitutional crisis, courtesy of Mr. Harper. The crisis, to be clear, does not lie in the Senate’s reduced numbers and diminished capacity (though that will become a crisis in itself eventually). The crisis, rather, consists in the fact that the effective head of the executive branch of government is refusing to comply with a clear and, so far, undisputed constitutional obligation. Perhaps it is nevertheless true that we should not try to solve this crisis by creating another one. But to say that is not to answer the question of how we should solve the problem of a lawless, constitution-flouting head of government.

I should stress that, in my view, Mr. Harper’s position on Senate appointments is a unique and unprecedented act of defiance. It is often said that his government has a history of engaging in actions or introducing legislation that they know is unconstitutional. Yet it had, until now, always proffered at least some arguments, albeit often weak ones, in defence of its legislation. While it has occasionally dithered about complying with its constitutional obligations (such as appointing a judge to replace Justice Nadon on the Supreme Court, or responding to the Supreme Court’s decision on assisted suicide), it ultimately did comply. Here, Mr. Harper has made no attempt to articulate a constitutional argument in defence of his position, and his commitment is too firm for him to back down on his own.

Emmett Macfarlane and Michael Plaxton both suggested that we should wait for courts to rule. But again, it is not clear that they will or ought to rule in favour of Aniz Alani, who is challenging Mr. Harper’s policy of not appointing Senators ― not because there is any doubt about that policy’s constitutionality, but because there is doubt about the courts’ power to remedy it. (Prof. Macfarlane has an interesting suggestion in that regard, arguing that non-appointment amounts to a constitutional amendment in violation of Part V of the Constitution Act, 1982. I think that would be a compelling argument at some point, but it is at least arguable that we are still far from having reached that situation.)

And just as importantly, I think it is worth at least asking whether we are right to think that judicial remedies are always better than political ones. They seem less shocking, less prone to generate crises. But what makes them so? The fact that judges are outside politics, perhaps. But then, so is the Governor General. And not everyone will agree that judges really are outside politics at all. (This also brings to mind an exchange I had with Mr. Coyne when he graciously accepted to publish an op-ed of mine arguing that the Supreme Court was wrong to constitutionalize some rights of organized labour in a series of decisions this winter. I suggested that we should, as a last resort, pursue a constitutional amendment to reverse these decisions. Mr. Coyne was skeptical of the amendment idea ― but not of my suggestion that governments should try to get the Court to reverse itself. But why should that judicial remedy be less problematic than the political remedy afforded by the amendment procedure?)

Those who disagree with me probably believe that the dismissal of the Prime Minister, even an avowedly lawless Prime Minister, by the Governor General would cause more harm than good to our institutions. They might be right. But I wonder if they are letting the short-term, shit-hits-the-fan consequences of this, admittedly radical, action blind them to the less visible, but insidious consequences that nothing being done will have for the Rule of Law, and especially for the respect for the constitution. Many of our constitutional rules only exist so long as political actors abide by them and, ultimately, all public law is dependent on the government’s commitment, which cannot be coerced, to comply with binding legal rules. This commitment is fraying, and I can only hope that this process will somehow be stopped before it is too late.

Dismiss Him

The Prime Minister, Stephen Harper, has announced that he will no longer be making any Senate appointments. Not that he had been making any recently ― in the last couple of years in fact. However, just last month, for the purposes of contesting Aniz Alani’s court challenge to the apparent policy of non-appointment, the federal government’s lawyers had told the Federal Court that “there was no ‘decision not to advise the Governor General to fill the currently existing [Senate] Vacancies’.” So a clear statement to the contrary is an interesting development.

Actually, it is a pretty shocking one. The constitution, in no uncertain terms, requires Senators to be appointed. Section 32 of the Constitution Act, 1867, provides that “[w]hen a Vacancy happens in the Senate by Resignation, Death, or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy” (emphasis mine). The word “shall” in a statutory ― or constitutional ― text indicates that the action is mandatory, not discretionary. And while the constitutional text is silent on the matter, we all know, and in its response to Mr. Alani’s challenge the federal government strenuously argues, that there is a constitutional convention dictating that in “summoning” persons to the Senate, the Governor General acts on the advice of the Prime Minister. If the Governor General has a constitutional duty, but can only exercise it at the Prime Minister’s direction, it follows that the Prime Minister has a duty to tell the Governor General what to do.

It is worth noting that the government’s response to Mr. Alani’s challenge does not allege the contrary. Rather, the government is essentially saying that the Prime Minister is entitled to get away with it, because the federal court, or perhaps no court, can issue a ruling to the contrary, notably because such a ruling would involve the “enforcement” of a constitutional convention. This may indeed be so. I noted here that Mr. Alani’s claim faced some real difficulties, and although in Alani v. Canada (Prime Minister), 2015 FC 649 the Federal Court dismissed the government’s motion to strike it, it is still not clear that the Court can grant the remedies that Mr. Alani seeks. Nevertheless, an argument that a duty is not enforceable by a court is not the same thing as an argument that the duty does not exist at all. And if the government does not make the latter argument in trying to prevent the courts from enforcing the duty in question, that’s probably because it knows that such an argument would be risible.

Mr. Harper’s announcement, then, is an open declaration of a resolve to act in dereliction of his constitutional duty. And contrary to what some might think, this problem does not only become serious once the Senate is short-handed enough for its functioning to be seriously impaired. At that point, it is true, an additional constitutional violation may arise, in that the Senate’s role in the constitutional “architecture,” which the Supreme Court has said is constitutionally protected, would be compromised. But that’s a separate matter from the fact that the head of the government of Canada is openly defying the constitution and flouting the Rule of Law. That defiance, in my view, needs to be stopped as quickly as possible. The question, then, is how and by whom.

Perhaps the Federal Court (in the first instance) and eventually, presumably, the Supreme Court, might do it in response to Mr. Alani’s challenge. Wittingly or not, Mr. Harper has removed one of the difficulties with that case to which the federal court pointed in dismissing the motion to strike (as I had done earlier), which is that it is difficult to prove that a course of inaction amounts to a judicially reviewable “decision” not to act. Court have in the past treated media announcements as evidence of decisions not to act ― perhaps most notably in Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44. Still, the chief obstacle to Mr. Alani’s case was always the involvement of constitutional conventions, and the courts may end up concluding that they cannot act.

A somewhat different judicial avenue exists too, however. A province could refer the issue to its court of appeal for an advisory opinion. The attraction of the reference route, in comparison with Mr. Alani’s challenge, is that Canadian courts have historically felt freer to deal with constitutional conventions in that context ― notably in the Patriation Reference. The various jurisdictional and remedial questions that further complicate Mr. Alani’s case would also not arise on a reference. The problem, of course, is whether any provincial government would have the political will to engage in this process. Because Mr. Harper’s stated intention in refusing to make Senate appointments is to put pressure on the provinces to agree on Senate reform, a province opposed to reform, such as Québec, would have a good reason for doing so, but whether that will be enough remains to be seen.

The most certain, but also the most radical, solution of all is an intervention by the Governor General. Back in January, I suggested that the Governor General, if faced with a recalcitrant Prime Minister, should start appoint Senators on his own. That idea did not meet with much approval. It would, people said, undermine the conventions of responsible government, requiring the Governor General to act on ministerial advice. Very well then. Since there seems to be no alternative, let the Governor General dismiss Mr. Harper from office. Not in a few years’ time, when the Senate’s functioning is impaired. Now. Now that Mr. Harper has openly expressed his commitment to violating the constitution. I wrote, in my response to the criticism my suggestion of autonomous appointments, that “a Governor General will not dismiss a Ministry, except I suppose in the absolutely clearest of cases.” Well, we have an absolutely clear case in front of us.

It was bad enough when the leader of the opposition was promising that, if elected, he would fail to do his constitutional duty to fill the vacancies in the Senate when they occur. But for the sitting Prime Minister to announce his resolve to flout the constitution is worse. The person responsible for maintaining the Rule of Law and order in society cannot be engaged in civil disobedience. And since in our constitutional system judicial remedies for this situation are, at best, uncertain, it is not improper for the Governor General to resort to the political remedy that the constitution gives him. Once again: Mr. Johnston, dismiss Mr. Harper now.

Why Disenfranchising Canadians Abroad Is Wrong

Yesterday, the Court of Appeal for Ontario ruled that Parliament can disenfranchise Canadians who live abroad.  I summarized the decision, Frank v. Canada (Attorney General), 2015 ONCA 536, in my previous post. Here, I make a number of comments that explain why I believe that the majority is wrong, and Justice Laskin, who dissented ― quite angrily, going so far as to call some of the arguments the majority adopted “inventions” ― is right.

First, the majority’s attempt to tie the right to vote to a “social contract” in which one participates by obeying the laws of Canada and paying taxes to Canadian authorities fails because not only the constitutional text explicitly ties it to something else ― namely, citizenship ― but our political practice does too. Permanent residents too must obey the laws and pay taxes, but they lack the right to vote, no matter how long they have lived in the country. Many permanent residents will know plenty of relevant knowledge, and be affiliate in a myriad informal ways with their communities and even Canada as a whole, in addition to obeying the laws, which the majority says are the things on which “the right to vote is premised.” [91] Yet they lack this right. That’s because, contrary to the majority’s assertion, that right is premised on something else.

A second, related, point, is that tying the right to vote to obedience to laws and, especially, to paying taxes, can just as easily serve to disenfranchise Canadians in Canada as those abroad. People who live on the margins of society, perhaps in a more or less deliberate attempt to avoid the reach of its laws, or those who do not make enough money to pay much (if any) tax, could be deemed less worthy of the franchise than other Canadians. As Justice Laskin points out, both the evolution of our electoral laws and the Supreme Court’s decision in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, suggest that this reasoning is unconstitutional.

Third, the majority is wrong to invoke the fact that Canadian laws tend not to reach outside Canadian borders as a reason for restricting the expatriates’ right to vote, because that is just a contingent fact about Canadian legislation as it exists now, which can neither be taken for granted nor used to justify the curtailment of a constitutional right. As a matter of law, Parliament is free to legislate extraterritorially. It could, if it wishes, require Canadian citizens who live abroad to pay taxes to Canada on their foreign income ― as the United States requires its expatriates to do ― at its next session. To say that because Parliament does not do so now, Canadians abroad need no voice in electing its members is to let the statutory tail wag the constitutional dog.

Fourth, the majority’s description of the “social contract” as an exchange of obedience to laws, especially fiscal laws against the right to vote assumes away many important functions of government that continue to affect Canadians who live outside the reach of most Canadian legislation. While it is true that we only (directly) elect legislators, whose main function is to enact laws, we cannot be blind to the fact that in our constitutional system, Parliamentary elections also serve to elect, albeit indirectly, the executive. The executive, in turn, defines foreign policy, and is responsible for a variety of decisions that affect Canadians who live abroad. Will you be evacuated or otherwise helped in a crisis? How will your consulate be staffed? What sort of attitude will you be confronted with at the border when you travel home? And even, what will people think of you when, to the inevitable “where are you from,” you answer, “I’m Canadian”? The answers to these questions depend, if only indirectly and partially, on the results of elections, and thus give Canadians abroad a stake in the government of their country which the majority simply ignores.

Fifth, as Justice Laskin suggests, the sort of country they will return to matters to Canadians who live abroad, no matter how long they do so. The laws enacted today will continue to apply for years, maybe decades, to come. Path dependency is no less real in public policy than in our private lives. Being deprived of a say in the government of Canada today means that you lose that meagre measure of control over its future to which other citizens are entitled, even though you have the same right as they to live there. Indeed, one is entitled to vote, in Canada, on the eve of one’s permanent emigration from the country, but not, outside Canada, on the eve of one’s permanent return.

Sixth and last, at a more philosophical level, the majority’s understanding of the “social contract” is also problematic in its exclusivity. For the majority, one is either a member of the Canadian social contract or of that of some other country. Attachment to more than one society is impossible. If one lives abroad long enough, one simply withdraws from the Canadian social contract, even if one does not become a citizen of one’s new country of resident, and even though, as the majority recognizes, it is quite possible to maintain a subjective attachment to Canada from abroad. Indeed, subjective perception is insignificant. You may consider yourself Canadian, but objectively, you are not. I think that this is a condescending attitude to take, and it is not the least regrettable of the many regrettable features of the majority opinion.

I can only hope that the respondents have the stomach, and the resources, for keeping up their fight (they are, according to a website set up by their lawyers, “considering next steps.”) I can also only hope that the Supreme Court will actually agree to hear their appeal, should they file one. I have, however, no doubt as to what the outcome of such a hearing, if it takes place, ought to be.