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Tuesday, March 20, 2007

The Supreme Court of Canada keeping us guessing - R. v. Bryan

Bryan reminds us that it is never wise to think we know what the Supreme Court will do. The lengthy 5/4 decision with two sets of reasons for the majority will keep us guessing.

Paul Bryan must have thought it would be pretty safe on the night of the November 27, 2000 general election to post results from the 32 ridings in Atlantic Canada on a website before the polls had closed in the rest of Canada. He announced he was going to do it and ignored a letter from Elections Canada warning him not to. It was forbidden by Section 329 of the Canada Elections Act, but two years before in
Thomson the Supreme Court had struck down Section 322.1 of that Act, which banned publication of polls in the last three days before an election. Surely the Court would strike down Section 329, particularly as the judges in Thomson who would have kept the ban on publishing polls were concerned that the polls might be inaccurate while Bryan was posting accurate, if partial, results.

As the Court reads the Charter Bryan's freedom of expression under Section 2(b) had obviously been breached so the Court had to decide whether Section 329 was a reasonable limit under Section 1. From the earliest cases the Court has read the Charter's rights and freedoms abstractly and strictly, readily finding breaches. If the Court understood the rights and freedoms concretely in their historic legal meaning its power would be less. "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication" protected under Subsection 2(b) of the Charter are threatened when governments try to control what people think and to hold power by censorship and persecution. Whatever its merits, Section 329 was not that kind of measure. By reading the protected rights and freedoms abstractly and strictly the Court brings the reasonable limits of Section 1 into play and sets itself free to do what it likes.

The majority writes of deferring to Parliament and all the reasons employ the
Oakes jargon of "rational connection" "proportionality" etc. with which the judges pretend to be engaged in subtle legal analysis when they are deciding whether they like a piece of legislation or not. But there is no mistaking that the judges are doing nothing different from what a politician, a journalist or a drunk in a bar would be doing in saying whether we should get results from the East while polls are still open or not. Real deference to Parliament would be the Court upholding legislation it did not like. That it does not do.

The Court's other ruse for concealing its political activity is to say that it relies on evidence of social and political facts. In the best of cases such evidence falls short of what the natural sciences can provide, making it easy for the Court to take it or leave it as it pleases. In Bryan there was an embarrassing dearth of evidence on the effect of results being released before the polls close. The Court had to resort to "logic and reason". This amounted to little more than the notion of "informational equality". The phrase describes the objective of the legislation: all voters should have the same information when they vote; none should know how others voted before voting themselves. Giving a concept a name, even a nice and imposing sounding one like "informational equality", does not make it a value. The Court accepted that it was a value.

The government's expert witness, a political science professor, testified that "informational equality" is "a central assumption of electoral democracy". This would have surprised voters before the days of the secret ballot. We may accept that secrecy of voting is now "a central assumption of electoral democracy" but the secret ballot was not adopted to prevent voters from knowing how their fellows had voted.

The other factor that weighed with the Court was a poll from 2005 that found 70% of those questioned "thought people should not be able to know election results from other provinces before their polls close". The Court would not say "If 70% of the people want the law they can have it." Whatever the talk of deferring to Parliament the Court has never talked of deferring to the people. It claims to be a bulwark against a tyranny of the majority. The Court took the poll as evidence of a subjective anxiety that would undermine confidence in democracy whether reasonable or not. It was not that publishing results before the polls close is unfair but that many people think it is unfair that mattered and justified the law. Concerned about the reliability of polls in Thomson the Court took the 70% at face value not considering whether a different wording of the question or a different context would yield a different result.

Resentment of results reported while polls were still open has been sustained because the West saw elections decided before they had finished voting. Staggered voting hours now mean practically that only results from Atlantic Canada are available before polls are closed everywhere. The minority would have struck down Section 329 on the ground that withholding the results from the 32 Atlantic ridings was not important enough to justify the breach of freedom of expression they found.

If Westerners have objected to hearing results from the East before they have finished voting it was not so much hearing as the results themselves they did not like. With a great majority of seats in Ontario and Quebec and those provinces tending to vote in blocs the West was powerless and saw it. More seats in the West and more open contests in Ontario and Quebec would relieve the West and late voters might even want to know the state of play before voting.

The Court held that it was important that Western voters should vote in ignorance of what Atlantic voters might be doing even though, after Thomson, eve of voting polls as indicative as partial official counts are now a constitutional right. Who can blame Bryan for thinking he was safe? We can predict elections but not Supreme Court decisions.

Friday, March 9, 2007

The Supreme Court of Canada goes back to Blackstone? - Canada (Attorney General) v. Hislop

In Hislop same sex couples won a predictable, limited victory against a government whose opposition was a feint. But Hislop et al. made broader claims whose defeat, sensible in itself, required the Supreme Court to consider what it is doing with the Charter. Getting into deep water the Court became lost and divided.

When the Court decided in M. v. H.
in 1999 that same sex couples must be treated the same as opposite sex couples Parliament and the Legislatures undertook massive legislation to make their laws comply with their understanding of the Court's decision. Parliament passed the roughly 50,000 word Modernization of Benefits and Obligations Act in 2000. A couple of sections of this act dealing with Canada Pension Plan survivor benefits were in issue in Hislop.

The legislation provided that survivor benefits should not be paid to survivors of same sex "spouses" who died before January 1, 1998 and that no payments should be made to such survivors for months before July 2000, the month the new legislation took effect. The reasons for these cut offs were not made clear before the courts or when the legislation was before Parliament. An official told M. P. Svend Robinson in the committee hearings that policy decisions would be made about possibly affected claimants. It seems that the government had only a vague idea of what the cost of same sex survivor benefits would be and decided on an arbitrary cut off to be safe against a deluge of claims from the past. Future claims could be tracked and budgeted for.

The government made the bizarre argument before the Supreme Court that the cut offs did not discriminate between same sex and opposite sex couples, contrary to M. v. H., but only between different sets of same sex couples. This was too cute even to amuse in law school. The sections under attack expressly revived for the purposes of the cut offs the old definition of "spouse" and maintained the discrimination the courts had condemned, up to January 1, 1998 and July 2000 respectively.

The government's attempt to justify the cut offs under Section 1 of the Charter was not serious. By now it is clear that the Canada Pension Plan does not face a deluge of claims from the past. In any event payments have never been allowed for more that twelve months before the receipt of an application. And many survivors of same sex couples who might have made claims are now dead.

Hislop et al. argued that survivor benefits should be paid to those who might have claimed them if the law had been what the Court in M. v. H. in effect said it should have been from April 17, 1985, the date the equality provisions of the Charter took effect. The trial judge had accepted their argument and suspended for same sex claimants the provisions of the Canada Pension Plan that require claims by estates to be made within twelve months of death and limit payments in arrears to twelve months before receipt of an application. The Ontario Court of Appeal overturned that part of the trial judge's decision and the Supreme Court agreed with it. The Supreme Court's rejection of Hislop's cross-appeal rested on one narrowly technical ground and the gravest issues of jurisprudence.

The Court held that the Charter only guarantees equality to individuals and that as estates are not individuals they cannot make claims relying on the Charter's equality guarantee, even though an estate may be less than it would have been because the deceased individual was discriminated against by unconstitutional law before death. If this seems unsatisfactorily technical the Court's decision of the deep issue of constitutional jurisprudence leads to the same result.

It is an old doctrine of jurisprudence, for which the Court found a classic statement in Blackstone, the 18th century commentator on the common law, that courts find law, they do not make it. They may find it in an act of Parliament, perhaps recently passed, and no one suggests that what they find there was the law before it was enacted by Parliament. Indeed it is a general principle of jurisprudence that legislation should not have retroactive effect. It is unjust that what people did in the past should be subject to law that did not exist then. When cases are decided on common law Blackstone's doctrine holds that what the courts decide was always the law even if people did not know it until the courts decided the cases. On this doctrine parties cannot claim that the rights arising from their actions are determined by law that did not exist when they took them. Blackstone's simple classic doctrine is as out of fashion as the wig her wore. Law professors promote the idea that judges can and should make up the law in accordance with progressive thought in law schools while cloaking their legislative activity in mystifications lest people wonder why unelected people should be making laws.

The Charter fits awkwardly into the distinction between legislation and common law. The Charter is legislation enacted by Parliament at Westminster and subject to amendment by the elaborate procedures that came with patriation. But it is peculiarly vague and broadly worded legislation. If you bother to check you can find in the Income Tax Act the exact consequences of any getting and spending you may do. But governments in legislating can only guess whether they are complying with the Charter.

Section 15 of the Charter was suspended for three years to allow Parliament and the Legislatures time to amend their statutes to bring them into compliance with its equality guarantee. Teams of government lawyers were set to work guessing what the courts would make of it and a mass of legislation was passed to comply with it. Some of their guesses must have been wrong and changes made that the courts would not have required if asked. But no one thought to provide same sex benefits. If asked in 1985 the courts would not have required them.

The majority of the Court in Hislop held that Blackstone's doctrine cannot always apply in Charter decisions and that "when a court is developing new law [emphasis added] within the broad confines of the Constitution, it may be appropriate to limit the retroactive effect of its judgment." It laid emphasis on
Egan, in which the narrowly divided Court in 1995 found the Charter did not require that "spousal allowances" under the Old Age Security Act be paid to same sex partners. Frankly admitting that the Court had made new law it held that the retroactive remedy the trial judge had devised would be applying new law to the past.

Mr. Justice Bastarache in a forceful dissent accused his colleagues of asserting "in essence, that the Constitution actually changed between 1985 and 1999, and that the claimants, unlike other Canadians, were not entitled to its protection in 1985." Rejecting Blackstone's theory of common law and insisting that it is made by judges and not found, Bastarache yet insisted that "Judges do not "make" the Constitution every time they interpret its provisions....Charter rights are not created every time that a court ...[he quotes the majority] 'gives content to broad, but previously undefined rights, principles or norms'."

Sharply kicking the legs out from under the bench on which the majority sat, by some kind of levitation Bastarache still sat with them on it and agreed with the result, refusing a remedy by which Hislop et al. could receive what he adamantly maintained was due to them by Charter right since April 17, 1985. He claims for the Court an unexplained authority to do as it sees fit in giving retroactive effect to its judgments. He could as reasonably claim authority to do so prospectively.

The majority found a logical ground for refusing retroactive relief in holding that the Court had made new law in M. v. H. but could give no logical account of when it would be "operating inside or outside the Blackstonian paradigm", i. e. applying existing law or make new law. Bastarache insisted logically that the Court could only be applying existing law found in the Charter but could give no logical ground for refusing retroactive relief.

The conundrum would be resolved if the Court adopted a restrained, modest, conservative approach to the Charter, finding in it only rights that are plainly there, and gave precise succinct reasons making clear what is not clear in the Charter. Then we should all know where we stand under the Charter and the Court would not have to operate "outside the Blackstonian paradigm". The Court's freedom and power would be circumscribed. But from the start the Court used the Charter to make new law and gave such prolix, obscure and incoherent reasons that it is a sure thing that in the years to come it will find rights we do not know and even deny rights we think we have.

Thursday, March 1, 2007

INSIDER REPORT Eddie Goldenberg's The Way it Works

March 1, 2007, Books in Canada

The Way it Works: Inside Ottawa
Eddie Goldenberg
A Douglas Gibson Book McClelland & Stewart Ltd.
402 pages, $36.99 cloth
ISBN 0-7710-3352-4

Eddie Goldenberg worked almost continuously for Jean Chrétien in government and politics from 1974 until Chrétien’s retirement in December 2003. The son of the superbly well connected Senator Carl Goldenberg, Eddie got a summer job working for Chrétien in 1972 through John Rae, Chrétien’s executive assistant from 1967-1971 and his perennial campaign manager. At Chrétien’s right hand as a cabinet minister and Leader of the Opposition, Goldenberg became “Senior Policy Adviser” to Prime Minister Chrétien. At cabinet meetings, meetings with premiers and foreign leaders, wherever the action was, Eddie, as he is careful to point out, and the many photographs in the book show, was almost always there. Often he represented Chrétien. He wrote speeches for him. To the public he was unknown.

Despite his title, Goldenberg had no head for the real work of government. Chrétien had the well known genius Chaviva Hosek as Director of Policy. A self-confessed “political junkie”, Goldenberg was a political strategist and fixer, seeing that Chrétien got what he wanted. He was the boss’s grinning consigliere. His idea of government is simply spending. His proudest personal achievement in government was engineering the flow of billions to universities and research in the last Chrétien years.

The Way it Works partly lives up to its title, giving an account of how cabinets are formed, what goes on at cabinet meetings - boring presentations, ministers catching up with their paperwork, leaving the table to get coffee - how decisions are made. Goldenberg thinks it all works pretty well. The book is also a defence and celebration of the Chrétien government. In this the implication of the title is that critics do not understand how it works, how it has to work.

He says his aim is to explain that cynicism about politics and government is misplaced. He has some explaining to do. The Liberals came to office on the basis that the GST was the work of the devil, NAFTA a bad deal, military helicopters unaffordable, the deficit no big problem that should crimp spending. They knew all this was untrue. At least they could have figured it out. Goldenberg describes David Dodge, then deputy finance minister, explaining to Hosek and himself the financial crisis Canada faced. Dodge said nothing that had not been in the newspapers for years.

Goldenberg confirms Chrétien’s big picture, chairman of the board approach to government, which got him compared to St. Laurent in the early years. He makes light of people who would not speak their mind to Chrétien or who took things Eddie said in casual conversation as commands from the Prime Minister. But if Chrétien was content to leave ministers to get on with their work he was nonetheless determined to have his way in what interested him. If what that was was not clear people were all the keener to do what they guessed was his will. Chrétien’s reputation as a tough boss was not a delusion of weak and inexperienced politicians under him, or a function of his office. Chrétien was a pure power politician. He enjoyed power and being able to help his friends and hurt his enemies. There was work that had to be done. He could not run the country into the ground and enjoy himself. But he could not enjoy himself if he was not securely in charge.

Chrétien’s one challenge was Paul Martin. Goldenberg paints an unpleasant picture of Martin, though of course the Goldenbergs had known the Martins since the 1930’s. There will be other accounts of Chrétien and Martin. What is unaccountable is that Chrétien should have decided to stay on for a third election in 2000 and hang on for three years after that simply to thwart Martin, as Goldenberg affirms. The failure of the Martin government makes it no more creditable. Chrétien would not give up power except by his own free will. Any other possible successor showing signs of restlessness would have provoked Chrétien. Indeed Allan Rock did.

A highlight of the book is Goldenberg’s account of Canada’s decision on the war with Iraq. He claims Canada’s position was always clear and consistent. How then can there have been such drama as he claims on March 17, 2003 when Britain asked what Canada’s position would be and Chrétien announced to the House of Commons that Canada would not participate?

Goldenberg expresses resentment at what he calls the ultimatum and that it came from Britain. It was not an ultimatum. The coalition was about to go to war and needed to know, Canada having sent mixed signals, whether Canada would be with them. Britain was as much in it as the United States, though necessarily on a smaller scale. Perhaps they felt the inquiry coming from Britain would avoid the anti-American paranoia in evidence.

Now that Iraq is a hellish mess the consensus is that the war was wrong and Canada smart to stand aside. At the time many Canadians thought Canada should join in. Opinion in English Canada was roughly evenly divided. Chrétien could have led either way. Support for the war went way beyond business groups trying to curry favour with the U. S., the only support Goldenberg acknowledges. He rightly minimizes the impact of political difference or closeness on trade relations, driven largely by U. S. domestic politics.

Goldenberg calls it a brave decision but what was Chrétien braving? The U. S. was keen to have support but threatened nothing and did nothing as it was refused. He risked no votes over it. The political risk was all on the other side.

There was some drama on March 17, 2003 because Canada’s position was anything but clear and consistent. Shortly before, three Toronto papers headlined three interpretations: we would go only with the UN; we would go whatever the UN said; we would not go in any circumstances. In the confused debate it seemed that some would have had us send forces to defend Saddam against a putatively illegal invasion. If UN authorisation was the issue we still had to decide whether an invasion was justified. If yes, we should have been pressing the Security Council to approve it. If no, we should have been pressing the Council to say so. Our UN ambassador Paul Heinbecker, a latter day Loring Christie with anti-Americanism replacing Christie’s anglophobia, scurried about promoting a resolution for more time for weapons inspections coupled with explicit authorisation for an invasion, a transparent attempt to thwart Anglo-American plans stymied by French opposition to an invasion in any event.

As Goldenberg maintains that Canada’s position was always what Chrétien stated on March 17, he can give no account of the development of the policy. He describes Heinbecker, Claude Laverdure, Chrétien’s foreign policy adviser, and himself considering the British inquiry for a minute and advising Chrétien to say no. A serious country weighing up its interests and principles does not appear. The Ministers of Defence and Foreign Affairs barely appear in the story.

In Goldenberg’s insider account the context disappears: Francie Ducros’ “What a moron?”, Carolyn Parrish’s “Damned Americans....I hate those bastards!”. Canada’s prevarication and the anti-Americanism it nourished resulted in Canada’s decision seeming a condemnation of the invasion, a position many in Canada were pleased to adopt. It is this rather than the decision itself that may have had an impact on relations with the US and events in Iraq. Those massacring scores of innocents every week in Baghdad were encouraged by it.

There is real drama in the story of the 1995 Quebec Referendum, set in the context of a kind of Whig history of national unity with all well after the recruitment of Professor Dion, the Supreme Court Reference and the Clarity Act. Time will tell whether Chrétien has not secured Joe Clark a place in history for his description of the Clarity Act as a “blueprint for separation”.

Goldenberg complains that media accounts of government are “incredibly superficial”. The Way it Works reads like a long newspaper feature.