Leaving a Dragon Out

Emmett Macfarlane has a piece in Maclean’s today, in which he replies to both those who accuse the Supreme Court of being activist, and to those, like me, who argue that the accusations are misguided or unhelpful. I have repeatedly, including last week in response to Andrew Coyne, compared judicial activism to the “dragon of constitutional theory,” which doesn’t exist, albeit in a number of different ways. But, as Tolkien remarked in The Hobbit, “[i]t does not do to leave a live dragon out of your calculations, if you live near him.” Prof. Macfarlane reiterates that advice.

Although he acknowledges that often enough “complaints about activist decisions are simply complaints from someone who disagrees with a particular outcome,” prof. Macfarlane insists that the concept of activism can be meaningful and useful. He is distinctly unimpressed with lawyers for whom “the Court literally cannot err in its interpretation of the law” because the law is whatever the Court says it is, as well as with those who, although they acknowledge the theoretical possibility of the Supreme Court being wrong, insist that there’s nobody out there to correct it. Prof. Macfarlane reminds us of “the enormous amount of discretion Supreme Court justices have when interpreting the constitution,” as well as of the ineradicable part (albeit that it is only a part!) that politics play in constitutional adjudication. And so

we have to recognize that the meaning of the constitution itself is independent, in an important sense, from what the Court says it is; the Court doesn’t always get it right, and the other branches of government may have a legitimate interpretation of the constitution that diverges from it. We also have to recognize that judicial activism is real.

Prof. Macfarlane suggests two definitions of judicial activism, quantitative and qualitative. The quantitative definition is simply “the frequency with which the Court invalidates laws or impacts government policy.” Importantly, so defined, “activism” isn’t a normative concept, because deploying it in this way “does not make a claim about whether this level of activism is inappropriate or desirable.” As for the qualitative definition, it seems to be about the breadth or narrowness of the grounds of a given judicial decision (presumably one striking down a statutory provision or executive decision, though that’s not entirely clear) ― the broader the grounds (for example, if an executive decision is invalidated based on the Charter and not merely on administrative law grounds), the more activist the decision.

Those who renounce the use of the concept of activism, says prof. Macfarlane,

deny that judges have the discretion—which they invariably exercise—to act with more or less deference to the decisions of democratically elected governments.

Yet this is an important fact, which should not be obscured in public debates about the judicial role, and whether the Supreme Court is overstepping its proper bounds.

My disagreement with prof. Macfarlane is, it seems to me, only about words ― and how to use them. Substantively, I have no quarrel at all with his claim that politics are an inextricable part of constitutional law ― indeed I have defended this claim both in the abstract and in its application to Canadian constitutional adjudication. I do not deny that judges can be and choose whether to be more or less deferential to elected officials (or civil servants) ― indeed I have blogged repeatedly about various factors that would make deference more or less justified in a given case. And I’d be the last person in the world to say that the Supreme Court cannot go wrong in its interpretation or application of the constitution ― I have argued that it did just that too many times to count, and with a vehemence which occasionally seems to make even this blog’s fans uneasy. But I think that it is possible to make all these arguments without invoking “judicial activism,” and indeed that we are better off making them in that way.

The problem with the concept of activism is that the way in which it is actually used in the public discourse. It is an invariably evaluative concept, not a merely descriptive one. Political scientists use it in that way, but I do not think that they have succeeded, or are about to succeed, in making journalists, or legal academics for that matter, imitate them. In both general public discourse and in legal academia the phrase “judicial activism” is invariably evaluative. (Indeed, it is invariably pejorative, because those who like their courts to be activist (in the descriptive sense) tend to speak of “judicial engagement” instead.)

And so it seems to me that to insist on speaking of “activism,” in the hope that people will actually use the term in its “proper,” descriptive sense is very optimistic. Those who persist in doing so risk generating more confusion than clarity. If there were no other ways of describing the phenomena at issue, we wouldn’t have a choice. But I really don’t understand why the rate of invalidation of legislation or executive decisions couldn’t be usefully described as, simply, the rate of invalidation; or the breadth of the grounds of a particular decision as, simply, the breadth of grounds.

To use these more specific terms is, once again, not to deny that Courts can invalidate more or fewer of the decisions of the legislative and executive branches, or that, in doing so, they can often (although perhaps not always) choose more or less expansive grounds to justify their conclusions. It is not to deny that these choices, and many others that courts make, are influenced ― although, as prof. Macfarlane rightly insists, not determined ― by politics, in a broad (that is, ideological rather than partisan) sense. It is not to deny, finally, that we can and should speaking about these things (which I have been trying to do, at this blog and anywhere else where they’ll let me). It is simply to try to rid our public discourse of a phrase that is, in its actual use, to confusing, and too often abused, and which there is particular necessity to persevere in using. It may not do to live a live dragon out of our calculations; but nor will it do to burden them with dragons mythical, chimerical, or purely hypothetical.

UPDATE: Over at It’s Politics, All The Way Down, Stewart Prest also has a response to prof. Macfarlane, which is worth reading.

Expecting Too Much?

I have recently responded here, in some detail, to Andrew Coyne’s article claiming, in essence, that some of the Supreme Court’s recent decisions were not mere wrong, but altogether unreasonable, and therefore “activist.” Over the Policy Options blog, I briefly take on Gordon’s Gibson’s attack on the Supreme Court’s alleged activism, which I think is quite gratuitous, and nowhere near as interesting as Mr. Coyne’s. Jamais deux sans trois, they say. So here’s a response to another example of this genre ― an op-ed by Brian Lee Crowley, originally published behind an impenetrable paywall by the Globe, but conveniently available on the website of the Macdonald-Laurier Institute.

Mr. Crowley argues that the Supreme Court’s recent decisions ― he refers to those on “the right to strike, assisted suicide, national securities regulators, Senate reform or who is entitled to sit on the Court” ― are responsible for an “insidious corruption of purpose of the law, the legal profession and the courts.” Behind some (unnecessarily, in my view) combative rhetoric, his argument is quite interesting. It can, I think, be summarized as follows:

1. “One of the most basic purposes of the law” is to generate stable expectations about people’s entitlement and liabilities;
2. The courts’ application of (and, more broadly, the legal profession’s and academia’s thinking about) the Charter, however, has produced a jurisprudence that is unstable and disrupts instead of fostering expectations;
3. More, and worse, it has produced a mindset that does not care for stability, and on the contrary finds virtue in “turning the law into an instrument of social change” ― not just in constitutional cases but across the board, including, for example, in contract law.

The first point is a staple of the Rule of Law discourse, and few lawyers will disagree with it. The following two, however, are overstated, in my opinion. There is something to them but rather less than Mr. Crowley claims.

It is true, for instance, that the Supreme Court’s Charter jurisprudence is not a paragon of stability. The Court’s high-profile decisions on prostitution, labour rights, and assisted suicide were reversals of earlier precedents. That said, some context is in order. The previous decisions on prostitution and assisted suicide dated from the first decade of Charter jurisprudence. Neither the Court itself nor the litigants had yet had the time to work out the way to argue and decide such cases. The relevant legal principles were in their infancy; the factual records which proved crucial to the more recent decisions were not available. Criticizing reversals of such early decisions is not altogether fair. The labour law cases are a different matter, because they reversed much more recent decisions, and there was no evidentiary record to justify their reversal either.

The other cases which Mr. Crowley alludes to, by contrast, simply aren’t reversals of existing precedent. L’Affaire Nadon was a case of first impression. The Senate Reference, as I have argued, for example, here, fits in a consistent pattern of the Supreme Court’s rejection of unilateral constitutional reform, as does Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837. The latter case also builds, straightforwardly in view, on a long line of cases interpreting the federal “trade and commerce” power narrowly. If anything, the way to criticize it is by saying that the Court was wrong to apply these precedents in a changed economy. (I don’t think it was, but that at least would be a strong critique.) Indeed, at first glance, it seems rather strange that Mr. Crowley has listed these decisions as examples of the Supreme Court’s destabilizing legal expectations ― though I think there is an explanation, to which I will shortly come.

Before doing so, let me address Mr. Crowley’s third claim, which is that the Charter has had a broader destabilizing influence. Indeed, it is worth noting that none of the cases I discuss in the previous paragraph was based on the Charter. To the extent that they did in fact generate instability, they would arguably be examples of that influence ― but I don’t think they are very convincing examples. Mr. Crowley’s main concern, though, seems to be with private law. He is, for instance, visible annoyed by the Supreme Court’s decision in Bhasin v. Hrynew, 2014 SCC 71, which incorporate a general duty of good faith into the Canadian common law of contract.

The difficulty with Mr. Crowley’s argument here is that even the good old common law fields of tort and contract were never quite as immutable and predictable as he makes them out to be. I will give just one example here:

Faced with this abuse of power – by the strong against the weak – by the use of the small print of the conditions – the judges did what they could to put a curb upon it. They still had before them the idol, “freedom of contract.” They still knelt down and worshipped it, but they concealed under their cloaks a secret weapon. They used it to stab the idol in the back. This weapon was called “the true construction of the contract.” They used it with great skill and ingenuity. They used it so as to depart from the natural meaning of the words of the exemption clause and to put upon them a strained and unnatural construction. In case after case, they said that the words were not strong enough to give the big concern exemption from liability; or that in the circumstances the big concern was not entitled to rely on the exemption clause.

Lord Denning, to whose unmistakable pen these words belong (in George Mitchell (Chesterhall) Ltd. v. Finney Lock Seeds Ltd. [1983] Q.B. 284 (C.A.)), is the judge who, for many generations of law students throughout the Commonwealth, arguably was the incarnation of the common law itself. He also drove lawyers mad with his jurisprudential innovations, even prompting a distraught student to write an open letter to the Times asking him to please not change the law any more before her bar exam (an incident which he gleefully recounts here). And, needless to say, he plied his trade in a blissfully, or sadly, Charter-free legal system.

For all that, it is not impossible that the Charter has contributed to a professional mindset that questions the old adage that it is more important for matters to be settled than to be settled right. It may well have made the legal profession into a less conservative and more activist group. But I don’t think that Mr. Crowley has demonstrated this. Such a demonstration would require rigorous comparison and attempts to isolate the influences of a single constitutional document from those of broader, and independent, cultural trends. It would be a difficult task.

Even if it could be accomplished, would Mr. Crowley’s normative claim ― that the use of law to bring about social change, to settle matters “right” even at the risk of upsetting expectations, is a form of “corruption” ― be justified? The claim is reminiscent of F.A. Hayek’s views in Law, Legislation and Liberty, according to which “the only public good with which [a common law judge] can be concerned is the observance of those rules that the individuals can reasonably count on” (vol. 1, Rules and Order, p. 87). Yet Hayek acknowledged that “law arising out of the endeavour to articulate rules of conduct … may not develop in very undesirable  directions” (88). In such cases, he thought that the best remedy was a legislative intervention. Like Mr. Crowley, he was not keen on judicial overturning of precedents, arguing that “[t]he judge is not performing his function if he disappoints reasonable expectations created by earlier decisions,” (88) even if misguided ones.

The problem with this approach is that legislatures aren’t always ready to intervene to correct undesirable developments in the law. What I recently described here as “democratic process failures” ― “persistent inabilit[ies] of that process to produce laws that majorities would agree with and find desirable” ― are a real problem, and possibly an even more pressing one in the realm of private law, which just doesn’t attract the attention of legislators a great deal, than with salient constitutional issues. And so it is not obvious to me that judges should not sometimes intervene and change the law, even at the risk of upsetting established expectations. After all, a legislative intervention disrupts expectations as much as judicial intervention does.

And then, there is another problem too, which neither Hayek nor Mr. Crowley really address: expectations are sometimes not as stable as they seem to believe. Quite apart from legal change, social change happens, and settled law can, instead of conforming to, and confirming, social expectations, come into conflict with them. This, I suspect, is what accounts for Mr. Crowley’s inclusion of l’Affaire Nadon, the Senate Reference, and the Securities one in his list of expectation-upsetting cases. They did not, I have argued, upset any reasonable legal expectations. But they may have upset the expectations actually held by a large number of people ― without reference to the law.

It is fine to say that the law must uphold expectations ― it usually must, and it is usually clear enough what must be done in order to achieve this. But not always. A good theory of law must account for the occasional difficulties of this task. It must account, in a realistic way, for the need to correct the mistakes made in this process. And it must account for the possibility of social expectations diverging, sometimes quite quickly, from legally settled ones (which is arguably what happened with assisted suicide). Mr. Crowley’s argument is interesting, but it probably expects too much from the law.

Some News

In seems that in blogging, as in real life, the more you have, the more you’re given. This blog was a start. But then Yves Faguy, the editor of the CBA National Magazine, invited me to blog for them, which I try to do on a monthly basis (I’m afraid I’ve skipped a couple of times). And now Dan Gardner, of Policy Options, has invited me to join its blogging roster too. So I have, My first post for them is up now, with a reply to yet another attack on the Supreme Court’s alleged “activism.” (In case you missed it, I responded to a much more sophisticated critique of “activism” here.)

The question, I guess, how many blogs are too many. Well, some people say “one.” As for me, I guess I’ll just try to find it out experimentally. That said, my main blogging focus is still going to be here. The Policy Options blog, as I see it, will be for shorter posts oriented to a more general audience. Unlike with the National Magazine posts, I probably won’t always link to them here, but I might cross-post them here if I think they’re interesting enough.

Besides hogging up ever more bytes and pixels, I’ve also contributed to the slaughter of trees this week, as the National Post published my op-ed condensing my criticism of the Supreme Court’s recent decisions constitutionalizing the right to collective bargaining and the right to strike. That, obviously, is a one-off for now, but I’m always glad for an opportunity to try engaging wit ha broader audience. And then, there is, despite my commitment to the internet as a means of communication, something nice about seeing your stuff appear on dead-tree support, so I hope you’ll forgive me for bragging.

There Is Method In’t

To students of the Supreme Court’s “law of democracy” jurisprudence, there usually seems to be something distressingly inconsistent in the ways in which the Court approached the issue of discrimination against smaller political parties in Figueroa v. Canada (Attorney General), 2003 SCC 37,[2003] 1 S.C.R. 912, and that of the silencing of “third parties” in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827. The former struck down the requirement that a party present at least 50 candidates at an election to benefit from a number of advantages, notably tax-deductibility of donations to it. The latter upheld very severe restrictions on the ability of “third parties” ― that is, persons who were neither parties nor candidates ― to advertise during an election campaign.

As, for example, Michael Pal explains, in Figueroa

the Court’s s. 1 analysis was 167 extremely skeptical,  and diverged from the reasoning by the Harper …. majorit[y]. The regulation of political parties in the fashion adopted by Parliament was no less of a “political choice” than the law governing third parties in Harper … The 50-candidate threshold also engaged the same kind of policy-making role for Parliament in balancing where to draw the appropriate line that led the majority in Harper to defer to the specific cap set on third party spending. … Yet the Figueroa majority persisted in a searching examination under s. 1, because it was the role of the Court to ensure meaningful participation in the electoral process. (10)

But perhaps the two decisions are actually less inconsistent than we tend to assume. A re-reading of Figueroa shows that some of the ideas which caused the Supreme Court to adopt a deferential posture in Harper were already present there.

The first is the belief that political parties are the principal means by which citizens make their ideas heard in the political process. Justice Iacobucci, for the majority, claimed that

political parties have a much greater capacity than any one citizen to participate in the open debate that the electoral process engenders. By doing so in a representative capacity, on behalf of their members and supporters, political parties act as a vehicle for the participation of individual citizens in the political life of the country. Political parties ensure that the ideas and opinions of their members and supporters are effectively represented in the open debate occasioned by the electoral process. [40]

In Figueroa, this belief in the centrality of the parties to pre-electoral debate led the majority to insist that all parties be allowed to compete equally ― among themselves. But in Harper, where the issue was the participation of persons and entities other than parties, the same belief not illogically led the majority to consider their participation as less deserving of protection. Indeed, the majority pointed out that

as the Court discussed in Figueroa, there are few obstacles for individuals to join existing political parties or to create their own parties to facilitate individual participation in elections.  Still, some will participate outside the party affiliations. [113; emphasis mine]

For the majority, participation “outside the party affiliations” clearly seems anomalous.

The second idea which was first expressed in Figueroa but then became much more important in Harper is that pre-electoral debate is a zero-sum game; that one person’s or group’s ability to express his or its views as part of that debate effectively comes at the expense of the ability of others to do the same. In Figueroa, the majority took the position

that there is only so much space for political discourse; if one person “yells” or occupies a disproportionate amount of space in the marketplace for ideas, it becomes increasingly difficult for other persons to participate in that discourse.  It is possible, in other words, that the voices of certain citizens will be drowned out by the voices of those with a greater capacity to communicate their ideas and opinions to the general public. [49]

This view is key to Harper where, combined with the belief in the centrality of political parties to pre-electoral debate, it led the majority to conclude ― with reference to the passage just quoted ― that

[i]f a few groups are able to flood the electoral discourse with their message, it is possible, indeed likely, that the voices of some will be drowned out … Where those having access to the most resources monopolize the election discourse, their opponents will be deprived of a reasonable opportunity to speak and be heard. This unequal dissemination of points of view undermines the voter’s ability to be adequately informed of all views. [72]

And this, in turn, prompted the majority’s holding that not only was it permissible to limit the amounts “third parties” would be allowed to spend in pre-electoral debate, but that these limits could be very low, to avoid all danger of “drowning out” and ensure the centrality of the parties’ discourse.

Figueroa and Harper thus have more in common than we realize, or like to admit. But although there is method in this jurisprudence, it is still misguided. The parties no longer represent the best way for citizens to participate in pre-electoral debate. Indeed, without going into too much detail here (I may have occasion to do so in the near future), they are no longer very interested in debating policy issues at all. The role of injecting policy into public debate is increasingly shifting to “third parties” ― whether unions, NGOs, social movements, or even individuals. Nor is it at all obvious that pre-electoral debate is a zero-sum affair, and that the “drowning out” which worries the Supreme Court is a real danger.

Now, in Figueroa, neither of these ideas is necessary to the outcome. As prof. Pal points out, the legislation at issue in that case “disadvantaged small parties to such a degree that it can fairly be termed an incumbent protection mechanism insulating the large political parties from competition.” (10) This should have been enough to invalidate it. Incumbent-protection mechanisms that have no redeeming value (and, as the Court concluded, the 50-candidate rule was not rationally connected to any pressing and substantial governmental objective) should be regarded as necessarily contrary to the protection of the right to effectively participate in the political process, which the Court has interpreted section 3 of the Charter as protecting. In Harper, by contrast, the Court’s dubious ideas about the political process are central to its conclusion. If they are abandoned, that conclusion is indefensible.

Here Be No Dragons

Andrew Coyne, with whom I am often inclined to agree, has written an angry column arguing that the current Supreme Court is “the most liberal-activist … in our history.” Mr. Coyne claims the Court’s decisions in l’Affaire Nadon, the Senate Reference, the collective-bargaining and right to strike cases, and above all Carter, the assisted suicide case, show that it has broken free of any constraints imposed by the constitution’s “written text, the historical record, precedent, [or] logical consistency.” Readers will remember that I have been sharply critical of the Court’s decisions in l’Affaire Nadon and in the labour rights cases (here and here), and that I have expressed some doubts about the reasoning both the Senate Reference and in Carter. And yet the charge of activism does not move me.

Judicial activism, I wrote a while ago, is “something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways.” The trouble is that there are too many definitions of what judicial activism is floating around for the concept to be very useful. Too often, it is used as a mere rhetorical bludgeon, a pejorative label intended to reject any interference by courts with policies enacted by legislators, or even simply to dismiss a decision one disagrees with.

Mr. Coyne is too sophisticated to indulge in such simplistic tactics. He proposes what might seem like a plausible definition of activism:

What makes a decision “activist” … is not merely that it results in this or that law “passed by a democratic Parliament” being overturned, but whether it does so in accordance with Parliament’s own previously expressed wishes: that is, whether the grounds for the decision can in fact be found in a sensible reading of the Constitution, or whether the court made it up. Even allowing for some difference of opinion over what is reasonable, it is clear that not every such reading can be defended, as it is sometimes  clear that no reading was even tried.

I don’t suppose that this is deliberate, but it sounds not unlike the Supreme Court’s definition of reasonableness in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:

reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47]

An activist decision, we might say, is not a merely mistaken, but an unreasonable one. But as students of administrative law will know, this is not always a straightforwards standard to apply. Reasonable people can disagree about what is unreasonable. And so it is with the Supreme Court’s decisions about which Mr. Coyne complains.

Let me begin with those that trouble me less than Mr. Coyne.

The Senate Reference has its flaws. I have myself argued that the notion of “constitutional architecture” on which the Supreme Court rests its decision is obscure at best, and will need to be developed in subsequent cases if it is to become a working part of our constitutional law. But it is, in my view, hard to deny that the Court’s decision fits perfectly a line of cases going back to the original reference Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, and the Patriation Reference, which have consistently prevented both Parliament and the provinces from making important changes to the constitution unilaterally. Although its connection to written text is sometimes tenuous ― not least, in my view, because the text itself proved woefully inadequate to the task of guiding the Court (and the politicians to whom it is, in the first instance, addressed), the Senate Reference is not divorced from logic or precedent. Quite the contrary.

As for Carter, I have suggested that the way in which the Court presented its decision, justifying it largely by deference to the trial judge’s factual findings which it barely explained in its own opinion, is insufficiently transparent. It is an attempt to lead from behind the trial judge’s back, and this tactic is bound, in the long run, to undermine the trust people are willing to place in the Court. Yet the Supreme Court used the same approach in the prostitution case, Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, which Mr. Coyne specifically holds up as an example of justified exercise of judicial power to invalidate legislation. His concerns with Carter lie elsewhere. He is annoyed that the decision “finds a right to death in a section of the constitution devoted to the right to life” ― but it is also devoted to a right to the security of the person, understood, pretty uncontroversially it seems to me, as a right not to be subjected to unnecessary physical or psychological suffering, and there was compelling evidence that this was the effect of the assisted-suicide ban. And for the fact that the Supreme Court reversed its own earlier decision upholding that ban, pace Mr. Coyne, it is true that we now know a great deal more about how an assisted-suicide regime might work than we knew 20 years ago. The Court may not have explained itself nearly well-enough, but it didn’t make this up either.

I turn now to the decisions my assessment of which is closer to Mr. Coyne’s. Indeed, regarding l’Affaire Nadon, I know that he agrees with my criticism of the Supreme Court’s decision, since he said as much on Twitter. In my opinion, unlike the Senate Reference or Carter, that decision is unambiguously bad. It is poorly argued and will have (indeed, it is already having) unfortunate consequences. But is it really unreasonable, an indefensible decision for all that? Well, Michael Plaxton and Carissima Mathen had made a strong argument for it (which I critique here). The statute which the Supreme Court had to interpret was ambiguous, and the purposes behind it less than fully clear. The Court’s reading of the statute was wrong and pernicious. But as much as I disagree with it, I cannot bring myself to consider it as entirely divorced from the materials the Court had to work with, or absurd.

As for the collective-bargaining and right to strike cases, Omar Ha-Redeye has argued (here and here) that they are a plausible, although in my view not an obvious, still less a desirable, evolution of the Court’s jurisprudence on the Charter’s freedom of association guarantee. Certainly there were plenty of labour law scholars who urged the outcome to which the Court came. Yes, as Mr. Coyne suggests, this outcome is divorced from economics and reality. But then there will be people who will argue that it is adverting to economics instead of only legal sources that would constitute activism. Here, I think that the Court’s decisions are utterly unreasonable from a policy standpoint. But as a matter of law? Wrong, yes. Unreasonable, indefensible? I’m not so sure.

All that to say that there is plenty to criticize about the merits of the Supreme Court’s decisions, and Mr. Coyne should by all means do so. But an argument about judicial activism, even if the concept is carefully, perhaps even sensibly, defined is unhelpful. There are no dragons in the Supreme Court’s jurisprudence. Only some questionable, and some rotten, judicial decisions.

Commitment Issues

The Supreme Court has released its judgment in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, holding that some of the obligations which federal legislation intended to combat money-laundering and the financing of terrorism cannot be constitutionally applied to lawyers. It thus (largely) confirmed the decision of the British Columbia Court of Appeal in  Federation of Law Societies of Canada v. Canada (Attorney General), 2013 BCCA 147 ― but not its reasoning, which had elevated the “independence of the bar” to the status of a principle of fundamental justice protected by s. 7 of the Charter. Having denounced that reasoning as “disturbing,” I am happy to see the Supreme Court reject it, although even its narrower decision is open to some criticism.

The Federation of Law Societies challenged two sets of provisions. One allowed for warrantless searches of lawyers’ offices in the pursuit of information related to money laundering and terrorism financing, with limited protections for solicitor client privilege. The other imposed substantial identity-verification and record-keeping requirements on legal professionals. Neither, the Supreme Court found, could stand up to constitutional scrutiny.

The search provisions, it unanimously found, were in breach of s. 8 of the Charter, which prohibits unreasonable searches and seizures. In Justice Cromwell’s words, the law “authorizes sweeping law office searches which inherently risk breaching solicitor-client privilege,” [35] contrary to the requirements set out in a case decided a dozen years ago, Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61. In particular, there was no notice to the client whose potentially privileged communications with his or her lawyer the government could seek to seize; no opportunity for the client (as opposed to the lawyer), or some independent entity to assert privilege; and no opportunity for a judge to refuse the communication of privileged documents in the absence of a challenge to the communication. Furthermore, the legislation failed to provide that “before searching a law office, the authorities must satisfy a judicial officer that there exists no other reasonable alternative to the search.” [54] These defects made the search provisions unreasonable, and thus contrary to s. 8. Nor could it be justified under s. 1 of the Charter, as the Court had set out some less impairing alternatives in Lavallee ― which Parliament failed to enact.

As for the identification and record-keeping provisions, the Court was also unanimous in finding that they infringed s. 7 of the Charter. All judges agreed that as failure to comply with these provisions exposed lawyers to imprisonment, their right to liberty was obviously engaged. However, they disagreed about the nature of the principle of fundamental justice with which these provisions did not comport.

Importantly, the majority (with which the concurrence does not disagree on this point) does not accept the “independence of the bar” as a principle of fundamental justice. This principle, championed by the Federation of Law Societies and accepted by the Court of Appeal, is capable of very broad application. The federal government argued “that the Court of Appeal’s broad definition of the independence of the bar essentially places lawyers above the law,” [78] a position in which the majority found “considerable merit” [80] although it concluded that it did not need to formally decide the matter. The majority added that although

self-regulation is certainly the means by which legislatures have chosen in this country to protect the independence of the bar … [it did] not have to decide here whether that legislative choice is in any respect constitutionally required. [86]

Rather, for the majority, the principle involved was “that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.” [84] The lawyers’ duty of commitment is, in its view, already a crucial part of the administration of justice in Canada, as part of a broader duty of loyalty, and universally recognized as such. Furthermore, although “this standard is far from self-applying, it has proven to be sufficiently precise to enable the courts to apply it in widely divergent fact situations.” [92] The state, therefore,

cannot impose duties on lawyers that undermine the lawyer’s compliance with that duty, either in fact or in the perception of a reasonable person, fully apprised of all of the relevant circumstances and having thought the matter through. The paradigm case of such interference would be state-imposed duties on lawyers that conflict with or otherwise undermine compliance with the lawyer’s duty of commitment to serving the client’s legitimate interests. [103]

The majority concluded that the impugned legislation did not comply with the principle of fundamental justice it articulated. The legal profession’s self-regulatory bodies have developed standards as to the information that lawyers ought to collect from clients, but the legislation required lawyers to collect much more information than (they thought) necessary in order to ensure ethical and effective representation ― and, potentially, turn it over to the state in breach of solicitor-client privilege. While

[p]rofessional ethical standards … cannot dictate to Parliament what the public interest requires or set the constitutional parameters for legislation[, they] do provide evidence of a strong consensus in the profession as to what ethical practice in relation to these issues requires. [108]

A departure from these standards would created the impression, both in the minds of (reasonable) lawyers and their (reasonable) clients, of a potential conflict with the lawyers’ duty of commitment.

The concurrence (the Chief Justice and Justice Moldaver) though that respect for that duty is too vague a requirement to amount to a principle of fundamental justice. Because the nature of a lawyer’s duty to his or her client depends on “the nature of the retainer … as well as … other circumstances … [i]t does not … provide a workable constitutional standard.” [119] Instead, the concurrence would have considered the respect of solicitor-client privilege as the principle of fundamental justice involved.

Some of the initial reactions I have seen were also critical of the majority opinion’s recognition of the duty of commitment as new principle of fundamental justice. For my part, I think that Justice Cromwell provides a pretty compelling argument in its defence. That a lawyer ought to be, and appear to be, committed to his or her clients’ interests and to no others’ is surely a well established principle in our legal system, and at least arguably a fundamental one. It would indeed be troubling if the state were able easily to interfere with that duty.

What I find more troubling is the majority’s application of the principle it identifies. Mostly, that’s because, although Justice Cromwell says that standards adopted by professional self-regulatory bodies “cannot … set constitutional” requirements, they seem to have exactly that effect in his reasons. If a requirement that lawyers depart from professional standards is inherently constitutionally suspicious, then I fail to see how the professional standards are not becoming, ipso facto, constitutional ones. And I don’t think that it is right that ethical standards developed by professional regulatory organizations can, by virtue simply of existing, acquire such a constitutional status.

I am greatly relieved, however, the the court all-but-rejected enshrining a (potentially) expansive view of the independence of the bar as a constitutional principle. As important as it is for lawyers to have the freedom to zealously represent unpopular clients, including against the government, it is at least not obvious that the cartelization of legal services, and consequent impediments to access to justice, in which the self-regulation of the legal profession results, is necessary for this pubic good to be achieved. It is very good news indeed that the Supreme Court has not committed us to that regulatory approach.

Playing with Irwin Toy

Here’s something that might be obvious to people with good memories, or those immersed into the Supreme Court’s freedom of expression jurisprudence, but which, I confess, surprised me when I recently re-read two of the foundational cases of that jurisprudence, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, and R. v. Keegstra, [1990] 3 S.C.R. 697.

I did remember, as I’m sure any constitutional law junkie does, what we have come to know as, to borrow Justice Rothstein’s phrase in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, as “the values underlying freedom of expression first recognized in Irwin Toy” [65]. In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, Chief Justice McLachlin summarized these values as “individual self-fulfilment, finding the truth through the open exchange of ideas, and the political discourse fundamental to democracy” [23]. Their original statement, in Irwin Toy, was more elaborate. In their joint reasons, Chief Justice Dickson and Justices Lamer and Wilson wrote:

[T]he principles and values underlying the vigilant protection of free expression in a society such as ours … can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. (976)

This original statement has, I think, largely been forgotten, though perhaps we haven’t lost anything with the Chief Justice’s pithier summary or variations thereon. That’s not so important now. What I find more interesting is that we, or I at any rate, have also forgotten the context in which this statement occurs.

In Irwin Toy, as in other early Charter cases going back to R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, the Court analyzed infringements of Charter rights by the object of a statute and those by the statute’s effects separately. (This distinction seems to have mostly fallen by the wayside at some point which I am too lazy at the moment to ascertain, although it was resurrected, with unfortunate effect in my view, in the Ontario Court of Appeal’s citizenship oath decision,  McAteer v. Canada (Attorney General), 2014 ONCA 578.) In Irwin Toy, the Court found that the statute at issue infringed the freedom of expression by its object, since it was meant to prohibit the diffusion of a type of messages based on their meaning (specifically, it prohibited advertisements aimed at children). Nevertheless, presumably in an effort to provide guidance to lower courts, the majority opinion went on to discuss the circumstances in which a law that does aim at infringing freedom of expression will nevertheless have that effect. It is in this extended obtier that the statement of the “values underlying the vigilant protection of the freedom of expression” appears: the majority explains that

[i]n showing that the effect of the government’s action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. (976)

But to repeat, this is only necessary if the impugned law does not have the purpose of restricting or suppressing expression based on its content.

Fast forward… less than two years, to Keegstra, where the role of the three values changes quite dramatically. Chief Justice Dickson ― one of the co-authors of the Irwin Toy opinion ― sets the scene by stating that

one’s conception of the freedom of expression provides a crucial backdrop to anys. 2(b) inquiry; the values promoted by the freedom help not only to define the ambit of s. 2(b), but also come to the forefront when discussing how competing interests might co-exist with the freedom under s. 1 of the Charter. (726)

And indeed it is (almost?) exclusively in the s. 1 analysis that the “values promoted by the freedom” of expression are relevant, in the Chief Justice’s opinion. These values, though, are the same three described in the Irwin Toy obiter as part of the infringement-by-the-effects-of-legislation test. In Keegsta, they become something very different ― namely, a sort of yardstick by which the worth of the expression restricted by the government, and thus the ease with which the government will be able to justify the restriction are to be appraised. Chief Justice Dickson explains that

the s. 1 analysis of a limit upon s. 2(b) cannot ignore the nature of the expressive activity which the state seeks to restrict. While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b). (760)

The closer the connection between the restricted expression and one (or more) of the Irwin Toy values, the more difficult it is for the government to justify the restriction.

That’s the theory, anyway, because this approach introduces an uncertain sliding scale, rather than anything like an American-style hierarchy of “levels of scrutiny.” Still, it is unusual in the Supreme Court’s Charter jurisprudence, which doesn’t ask whether, say, a religious activity is closer to or further from the values protected by freedom of religion, or whether some aspects of the right to the security of the person are more important than others. I don’t think there’s anything conceptually impossible about such inquiries, though it’s pretty clear that they would be difficult and quite subjective. But then again, aren’t those that happen under s. 2(b)?

Anyway, I don’t know if there’s a deeper point to the foregoing. I just thought it interesting how a test articulated in one context could, within a very short time and under the pen of the same judge, migrate to a rather different one and take on a much more important role than seems to have been envisioned for it. The stuff that gets you going when you’re a constitutional law junkie…