The Patrick Smith Case: How the Canadian Judicial Council Went Wrong

When Justice Patrick Smith agreed to come to the assistance of the Bora Laskin Faculty of Law at Lakehead University in Thunder Bay by serving as unpaid Interim Dean (Academic) for six months while the school sought a permanent replacement for its early resigning dean, Angelique EagleWoman, it’s unlikely that he thought he was risking the end of his judicial career.

Dean EagleWoman had resigned because she had concluded that the school evidenced systemic racism. She followed another dean who resigned early in his tenure, founding dean Lee Streuser. In between the two, Professor Lisa Phillips of Osgoode had filled in as interim dean. The school needed some breathing space to get its house in order. Justice Smith, now supernumerary, who sits in Thunder Bay, seemed to provide that opportunity.

Probably Justice Smith thought he had dotted his i’s and crossed his t’s, having obtained approval for a six month leave from Chief Justice Heather Smith of the Ontario Superior Court, who in turn notified the federal Minister of Justice, Jody Wilson-Raybould. He must have felt some security in taking the position after being urged to do so by Senator Murray Sinclair, former chair of the Truth and Reconciliation Commission and former justice of the Manitoba Court of Appeal. Senator Sinclair was familiar with Justice Smith’s contribution to the legal landscape in Thunder Bay; they had worked together on a “bench book”, a guide to cases involved Indigenous parties.

Had Justice Smith thought any of this, he would have been wrong. Instead, he found his judicial career and reputation in jeopardy and his willingness to assist the school backfiring on both him and the law school as a result of a complaint to the Canadian Judicial Council.

One might have expected a complaint to come from the Indigenous community in and around Thunder Bay, since the law school had created for itself an identity based on an emphasis on Indigenous law  and Justice Smith, not Indigenous, had replaced, even if temporarily, an Indigenous dean. Indeed, a decade ago, Justice Smith had sentenced members of the Kitchenumaykoosib Inninuwug (Big Trout Lake) Council to prison for contempt of court when the Nishnawbe Aski Nation had been fighting against mineral activity on their traditional territory on the basis that the land was theirs. Given that history and lack of consultation on this (temporary) appointment, the Nishnawbe Aski Nation considered the selection of Justice Smith “an insult”. Discussions between the university and the Aboriginal Advisory Committee to the law school, however, seem to have diminished the impact of this controversy prior to Justice Smith’s assumption of the position and according to the chair of Lakehead’s Board of Governors, during his three months at the law school, Justice Smith had “strengthened relations with the Indigenous community and the Faculty’s Aboriginal Advisory Committee“.

Whether a complaint from the Indigenous community or some part of it would have warranted a review of the judge’s conduct is a matter of conjecture, however, since they did not make a complaint. In fact, the actual complaint against Justice Smith came from a source internal to the CJC: its long-time executive director, Norman Sabourin, who took it upon himself to raise the issue of  controversy around Justice Smith’s willingness to take the appointment at Lakehead. The vice-chair of the CJC’s conduct committee, Senior Associate Chief Justice Robert Pidgeon of Quebec, raised the stakes by referring Sabourin’s complaint to a review panel. And suddenly Justice Smith, who had simply responded to the call to assist a law school in need, faced an ignominious end to his judicial career, with removal from the bench on the line.

Justice Smith commenced the appointment on June 1, 2018. On August 28th, Pidgeon ACJ referred the matter to a Review Panel and Justice Smith subsequently resigned the position of Interim Dean (Academic) and resumed his judicial duties.

Following Pidgeon ACJ’s initial finding that Justice Smith had engaged in conduct that might warrant his dismissal, members of the legal community wrote letters objecting, including a group of 36 lawyers from Thunder Bay and the Canadian Superior Courts Judges Association and the Ontario Superior Court Judges Association. Senator Sinclair also spoke out in support of Justice Smith. Their main message was that Justice Smith had stepped up to assist a law school in difficulty, described by Senator Sinclair as acting “according to the highest standards of the judiciary”.

The Review Panel, in its report of November 5th, while finding Justice Smith should not have taken the position, also decided not to refer the matter to a committee of inquiry because it concluded that his conduct did not warrant dismissal from the bench. The furor caused by the review of Justice Smith’s misconduct and the somewhat difficult situation that would result had the review panel recommended dismissal, thereby involving Minister of Justice Wilson Raybould (who had indicated she had no concern when notified of the leave request by Chief Justice Smith), may or may not have had an impact on the Review Panel’s decision. Justice Smith’s good intentions, lack of “bad behaviour” and resignation did play a part, according to the Report.

I’m relying on the Report of the Review Panel’s detailed account of the events leading up to Mr. Sabourin’s complaint for background.

Mr. Sabourin’s involvement occurred just over a week after Chief Justice Smith had approved Justice Smith’s request for leave on April 30, 2018. Mr. Sabourin wrote to Justice Smith on May 9th, warning him that his taking the position might mean Justice Smith’s conduct would be subject to the CJC’s consideration. Chief Justice Smith then assumed the communications with Mr. Sabourin.

In her May 11th reply two days after Mr. Sabourin’s initial letter to Justice Smith, Chief Justice Smith referred to an “‘existential crisis’ at the Faculty and the need for Justice Smith to provide the Faculty with stability by way of a leader with ‘appropriate gravitas and experience'” (para. 18 of the review decision). (In her letter to the Minister of Justice, the Chief Justice had also noted that the appointment would reflect the court’s commitment to the recommendations of the Truth and Reconciliation Committee.) The Chief Justice explicitly noted that she had taken the Ethical Principles for Judges into consideration in determining whether to grant Justice Smith leave. (Thus, for example, the terms of appointment would limit Justice Smith’s role to academic leadership and all other responsibilities would be delegated to other members of the Faculty and he would recuse himself from any litigation involving Lakehead.)

Mr. Sabourin indicated that the matter had been referred to Pidgeon ACJ. The Chief Justice reaffirmed her support for Justice Smith in a letter to Pidgeon ACJ, enclosing a legal opinion letter supporting allowing Justice Smith to accept the position, given the constraints on its exercise. Justice Smith responded to questions from Pidgeon ACJ.

While the Review Panel decided it was not appropriate to constitute an inquiry committee, recognizing that Justice Smith meant well (and by then he had in fact resigned, having no choice but to leave the law school high and dry), it did hold that Justice Smith had been wrong to accept the position. It explicitly found that he had contravened section 55 of the Judges Act, mandating a judge’s duties, a conclusion I suggest below was founded on an incorrect interpretation of section 55 and of the relationship between section 54 of the Judges Act, permitting judicial leave, and section 55. It also found that Justice Smith’s conduct was inconsistent with the CJC’s Ethical Principles for Judges, which it appeared to incorporate into the application of section 55. The Review Panel’s decision is confusing, since it both treats section 55 as absolute and also as modified by the ethical principles (I address this below).

As required, the Review Panel tossed the ball back into Associate Chief Justice Pidgeon’s court (as it were) and he determined it was sufficient to express his concerns to Justice Smith and not recommend further action.

Section 55 of the Judges Act states, “No judge shall, either directly or indirectly, for himself or herself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties”.

(I note briefly that the meaning of “occupation or business” in section 55 and whether it includes non-remunerative activities is also at issue. The Review Panel, considering the French provision, which refers to “activité”, section 55’s legislative history and what it considers to be explicit exceptions under section 56 of the Judges Act to the prohibition in section 55, concludes that “occupation or business” includes non-remunerative activity (Report, paras. 46 and 47) . However, others, including Chief Justice Strathy of the Ontario Court of Appeal, find that this is not realistic, since it would prevent judges from undertaking even hobbies (p.7 of Pidgeon ACJ’s referral). In fact, it flies in the face of the various kinds of activities even sitting judges engage in on a regular basis, such as teaching law courses.

The Review Panel concluded that “Justice Smith should not have accepted the appointment as Interim Dean (Academic) and by doing so, he contravened section 55 of the Judges Act” (para. 37; also see paras. 5 and 76).  To understand this conclusion, it is crucial not only to appreciate the Review Panel’s broad interpretation of “occupation or business”, but also, perhaps more significantly, its interpretation of how section 55 and section 54 relate to each other.

For the Review Panel, section 55 “has always been comprised of two foundational components”: these are “[a] prohibition on judges carrying on extra-judicial activities” and “[a] requirement that judges devote themselves exclusively to their judicial duties” (Report, para. 38). In its view, section 55 applies regardless of whether a judge is on leave. Therefore, although judges obviously cannot adhere to the second part of the provision when they are on leave (they cannot devote themselves exclusively to their judicial duties when they have none), they must nevertheless refrain from undertaking other activities. (It is worth noting that the French version identifies the duty more elegantly: “Les juges se consacrent à leurs fonctions judiciaires à l’exclusion de toute autre activité, qu’elle soit exercée directement ou indirectement, pour leur compte ou celui d’autrui.” The French says that a sitting judge should carry out his or her functions to the exclusion of other activities, but it does not seem as easily to be broken into two “foundational components” and therefore seems more clearly to apply to sitting judges only.)

Section 54 of the Judges Act sets out the process for a judge to obtain leave. (Under section 54, leaves of up to six months require the approval of the chief justice of the Superior Court of Ontario and leaves over six months require approval of Cabinet.) The leave permitted by section 54 is described as “leave of absence from his or her judicial duties“. (The French refers only to “leave”.) That is to say, that the judge will not be performing his or her judicial duties while on leave.

The Review Panel observes that there is “nothing in the language [of section 54]…to suggest leaves…may be granted to enable judges to take on responsibilities outside of the judicial sphere” (Report, para. 51). The only exceptions, in the Review Panel’s view, are circumstances such as illness or parental leave (para. 49) and those it treats as provided for by the Judges Act in section 56 (such as acting as a commissioner, arbitrator or mediator, among other roles for which judges cannot under subsection 57 (1) receive remuneration).

I suggest the Review Panel’s interpretation of section 55 and its relationship to section 54 are incorrect.

First, it does not really make sense to say that a judge on leave cannot undertake other substantive activities, although these would have to be consistent with the Ethical Principles, and presumably only with the approval of the chief justice as an aspect of approving the leave. A leave is a “leave from judicial duties” and thus it can be argued that a leave takes the judge out of section 55, except to the extent that other than for unavoidable reasons, the leave would not be granted if it interfered with the court’s ability to function effectively, for example. While section 54 does not specify the purpose of permitted leaves, nor does it limit activities for which leave will be granted.

Second, one may question whether the Review Panel is correct in treating  section 56 as exceptions to the general rule. It does not actually say words to the effect of “judges may undertake the following activities without contravening section 55: commissioner, arbitrator, adjudicator, referee, conciliator or mediator on any commission or on any inquiry or other proceeding”. Rather, it places a precondition on accepting these roles (roles that are akin to judicial duties): if the matter is within the legislative authority of Parliament, the judge must receive the authorization of Parliament; there is a similar provision for matters within the legislative authority of provincial legislatures. In addition, subsection 57(2) addresses remuneration, contemplating that judges might perform functions other than those identified in section 56:  section 56(1) does not apply if a judge has the right to receive remuneration under a provincial statute “other than for acting in any capacity described in subsection 56(1), …, but no judge is entitled to receive remuneration under any such Act or Acts in an aggregate amount exceeding $3,000 per annum”.

In short, the Review Panel interprets section 55 rigidly by specific interpretations and applications of sections 54, 56 and 57. Yet this ignores the reality that judges do engage in activities other than their judicial duties, whether they are sitting or on leave. A more reasonable interpretation of sections 54 and 55 would be that judges are not to undertake any activities that would interfere with their judicial duties when they are sitting and that they are able to undertake more substantive activities when they have been granted leave.

This alternative interpretation is consistent with the CJC’s own Ethical Principles for Judges, which refer to a wide range of activities beyond actual judicial duties in which judges might (and do) engage. The Ethical Principles states explicitly that “judges are free to participate in other activities that do not detract from the performance of judicial duties” (p.18). The Principles say that judges being “active in other forms of public service … is good for the community and for the judge” (p.33). Sitting judges, never mind judges who have taken a leave, teach courses in law schools, judge moots, give speeches and write articles and books and serve as judges-in-residence, among other activities beyond the bench. Judges are able to sit on boards of appropriate organizations. They are encouraged to sit on law reform commissions, given their expertise in law. A sitting judge may serve as a University Chancellor (see discussion of such an instance at p.10 of Pidgeon ACJ’s Reasons for Referral and at p.62 of the Review Panel’s Report, as well as the reasons for dismissing a complaint by a retired judge).

The Review Panel’s Report shows the difficulty of its interpretation of section 55 of the Judges Act, while at the same time acknowledging that the CJC’s own ethical principles contemplate that a judge may legitimately (while exercising caution) engage in activities that are not “judicial duties”, whether on leave or continuing to sit. In trying to reconcile the principles with the Act, the Review Panel twists itself into a knot to determine that Justice Smith had been wrong to accept the position, that is, to have engaged in misconduct, by grounding its conclusion in section 55.

I suggest that the focus in the Smith case would more appropriately have been on the Ethical Principles, rather than section 55. The Principles caution, for example, that regardless of the activity, judges should seek to avoid controversy, noting that “unfair or uninformed criticism … can adversely influence public confidence in and respect for the judiciary” (p.14). More specifically, they “should avoid involvement in causes or organizations that are likely to be engaged in litigation” (p.20).

The Review Panel has to acknowledge that judges do undertake non-judicial activities, such as those I referred to above, but it also notes, echoing the Ethical Principles, that there are limitations: the judge must maintain independence and impartiality (by not accepting remuneration or becoming involved in fundraising); “avoid[] public controversy” and conflicts of interests (or appearances of bias); consider whether it could be appropriate to become a spokesperson for an organization; and “avoid[] the perception that the judge has lent his or her judicial status to enhance the credibility or prestige of the outside organization”. (Report, para. 59)

In its decision, the review panel found that the appointment gave rise to problems that the conditions and limitations Justice Smith (with Chief Justice Smith) imposed on his role as Interim Dean (Academic) were insufficient to address: avoidance of public controversy and of conflicts; his appearing to be a public spokesperson for the school; and his lending his judicial status to the school (and by extension, that of the court).

Almost all, if not all, the activities referred to in the Ethics Principles, as well as others, can give rise to controversy. Boards of directors, as the Ethical Principles point out, may be involved in disputes with staff or breaches of government regulations (p.36) and even ceremonial university position holders are usually required to speak publicly for the university,

The university did think that Justice Smith’s stature and reputation as a member of the judiciary would assist the law school in moving past its difficulties; both Justice Smith and the Chief Justice acknowledged that. However, the members of the Review Panel are naive if they think that any organization that seeks the involvement of a member of the judiciary is not doing so in part, at least, because it expects that the judge will enhance its credibility or prestige. There may be ways in which this is manifested that are less desirable than others (in Justice Smith’s case, for example, he apparently wore his robes for a photograph for the school’s website, not the best course of action), but it is a benefit to organizations to be able to point to a judge that considers their activities sufficiently worthwhile to participate in them in some way.

It is often difficult to predict if and when an organization with which a judge has become associated may become embroiled in litigation (or if not the individuals themselves, the university) (p.37). Not only does this give rise to public controversy, but could make it difficult when the litigation is before the judge’s court, even though the judge recuses herself or himself. Here, though, no one should have been surprised that the former dean has launched a lawsuit against Lakehead.

This situation raised concerns. The fact is,however, that a judge’s involvement in law reform or scholarly writing may inadvertently offend people and lead to complaints. The real question isn’t whether there is a risk of controversy or litigation, but how foreseeable it is and what steps are taken to protect the reputation of the judiciary.

It seems that the CJC decided to make an example of Justice Smith, using his situation to “clarify” the kinds of activities judges can legitimately undertake outside their “exclusive” devotion to their judicial duties.

For whatever reason, the Review Panel insisted on an interpretation of section 55 of the Judges Act that cannot be sustained; it is contradicted by the CJC’s own Ethical Principles. The better view is that Justice Smith obtained a leave and therefore was able to accept the full-time, albeit voluntary, position of Interim Dean (Academic). He did not breach section 55.

The issue than becomes whether he was in contravention of the Ethical Principles. It is not clear why it is necessary to determine whether a judge is in breach of section 55 as a preliminary step to find that he or she has acted unethically, although this seems to be the Review Panel’s view. Put another way, because the Review Panel concluded that Justice Smith’s conduct contravened some of the ethical principles, it concluded he also contravened section 55.

Finally, there is one other major issue that should be addressed: that is that the biggest controversy in all of this has been the CJC’s decision to entertain the Sabourin complaint against Justice Smith. It is this action that created the publicly expressed anger of the Canadian and Ontario judges associations,  Thunder Bay lawyers, Senator Sinclair and others. Furthermore, the CJC’s decision to go ahead with the complaint even though Justice Smith had sought a stay from the Federal Court of the CJC proceedings also raised controversy, particularly because the CJC has taken the position, initially unsuccessful at trial, that the Federal Court has no jurisdiction to review its proceedings.

Mr. Sabourin, who initiated the complaint against Justice Smith, speaking,  for the CJC, said, “…judges and the public alike will benefit from greater clarity regarding the permissible scope of activities for judges that are outside their normal judicial duties“. The CJC’s rather confusing treatment of sections 54 and 55 and their relationship to the Ethical Principles is unlikely to achieve that goal. Furthermore, the controversy will continue since Justice Smith’s lawyer has amended his application to request a declaration that Justice Smith did not contravene the Judges Act. Both the Canadian Superior Court Judges Association and the Ontario Superior Court Judges Association are intervenors.

If the CJC’s unarticulated goal was to discourage judges from contributing to the common weal in appropriate situations, it may have succeeded. Given the public response to its treatment of Justice Smith’s efforts to provide a helping hand to his community, it has also succeeded in doing exactly what its own ethical principles warn against: jeopardizing the dignity and prestige of the judiciary.

What I’m Reading Now…

I usually have several books on the go at once, reading them at different times for different purposes. Usually, I finish them, but sometimes…. I rarely actually give up on a book — I just never seem to get back to it!

Women TalkingMiriam Toews’ All My Puny Sorrows is one of  my all-time favourite novels, but I wasn’t as easily captured by her latest, Women Talking, which I just finished. The theme of Women Talking is women’s empowerment, as a group of Mennonite women, faced with an epidemic of sexual assault by the men of the colony, decide to leave the only home they’ve known and venture into the what is literally and completely an uncharted external world. The novel is meant to be a record of their conversations as they decide how to respond to the sexual assaults and eventually to leave, but it is also the inner thoughts of the formerly “outcast” man who is transcribing their words, since they can neither read nor write. In a sense, then, this man is the central figure, he narrates in the first person and it is only through him that we learn about the women. This does not detract from how the women emerge as individuals or from the courage they display in making their final decision. Toews weaves throughout the hopes and fears of these very different women whose ultimate solidarity nevertheless allows them to leave the colony and begin a journey that will inevitably be a series of unknowns.

The other novel on my “short & sweet” list — novels I expect to finish quickly — is The Only Story by Julian Barnes, which I also just completed. Generally, I’m a Barnes fan, but Only Story struck me as fairly superficial, despite all the efforts at inward contemplation by the protagonist, a 19 FullSizeRender (1)year old man who falls in love with an older woman. Perhaps I was impatient with the narcissism underlying the story, but I found I had little interest in the characters.

Four very different books on my coffee table are ready to be picked up at any time. As winter approaches, I envisage sitting by the fire absorbing them. My only consolation now I have completed (today) Wolf Hall, Hilary Mantel’s rich and deep FullSizeRender (5)Man Booker Prize-winning novel (in 2009) about Thomas Cromwell, is that I already have ready her sequel, Bring Up the Bodies, winner of the Booker Prize in 2012, replacing it in the pile. I found Wolf Hall enthralling, phrases and sentences lying like jewels within the narrative.  Mantel’s focus on Cromwell means that Sir Thomas More becomes a secondary character, and despite More’s own status in England and abroad, in some ways, he becomes a foil for Cromwell. Their debates illuminate the difference between principle and pragmatism, yet both men emerge as complex and with deep-seated flaws.

I’m about a quarter of the way through Haruki Murakami’s IQ84, best described as “An immersive experience, one that will leave readers wondering what is real and what is imagined”, as a blurb from the Pittburgh Tribune-Review has it, Indeed, it is not only the reader but the main characters Aomame and Tengo who find themselves split between two dimensions. While I’m not rushing to finish this, I know that it won’t be one I leave behind.

It’s hard for me to avoid something that appears to deal with the developments in Trumpian America,  Can It Happen Here? Authoritarianism in America  is a collection of essays primarily addressing the likelihood — or not — that the changes that have occurred in the United States since January 2017 will eventually lead to authoritarianism, although the editor, Cass Sunstein states, “This is not a book about Donald Trump, not by any means”, but one that goes beyond to deal with “big and enduring questions”.  I’ve read only a few essays so far and find them uneven in how deeply they engage with the topic. Worse, the collection was published earlier this year, yet already it seems that those who are optimistic about the safeguards might have been surpassed by subsequent events.

Finally, among my four ready-to-hand coffee table books is The Story of the Jews: Finding the Words, 1000BCE-1492CE, the first in Simon Schama’s trilogy. My Twitter feed often includes the highly complimentary tweets of readers and viewers of Schama’s books and television programs on art and history and it was a tweet that brought The Story of the Jews to my attention. Rich in detail, the book can be difficult going for someone (or for me, at least) unfamiliar with this very early Jewish history, or indeed, only slightly familiar with the context generally, but once started, it is compelling. I already have the second volume, Belonging: The Story of the Jews: 1492-1900, a period I expect to recognize more easily.

I always have a mystery or detective story on the go. Currently, it’s one of the 75 (eventually) Penguin reprints of the Inspector Maigret stories by Georges Simeon. Relatively brief, these books rely on Maigret’s powers of observation — FullSizeRender (6)of people, events and what he sees around him. Small cues, such as a comment by a secondary character, can begin a train of thought that takes him to the solution. While he will order subordinates, such as Janvier and Lucas, to keep watch on suspects in different locations, he tends to work alone, and sometimes unofficially. He has his own sense of what is “just”, sometimes letting those who have committed murder go, as long as they abide by conditions he suggests or implies (such as moving away from the village where they have lived their lives, as in Inspector Cadaver, the latest for me).

When I go into town (less frequently now I don’t have meetings), I take the Go train. I feel like a tourist as we travel past Lake Ontario and the Palais Royale. And I’m reminded of the trips my family took to what was then Sunnyside Park on the streetcar, when we lived in Toronto. My “Go train” books need to be easy to slip into a purse, or sometimes a larger bag, but still not take up too much room or be too heavy. These vary, fiction and non-fiction. Right now, I’m reminding myself of how recently women authors were portrayed in biographies by reading Carolyn G. Heilbrun’s Writing a Woman’s Life. Heilbrun has popped up in my life intermittently, as the author, using the pseudonym Amanda Cross, of the Kate Fansler mystery series  (Fansler, like Heilbrun, was an academic at a highly regarded New York university) and as I grew older, as someone attracted to her life after 60 in The Last Gift of Time: Life Beyond Sixty.

Finally, two books on my bedside table have remained closed for some time. Since I began reading Joseph Boyden’s The Orenda, his very bright star has dimmed with allegations that he misrepresented his Indigenous heritage. However, I was already finding The Orenda hard going partly because it is, in my view, structurally stilted, although the alternating of perspectives was one of the reasons critics praised the book, and partly because of the primarily one-dimensional way characters are portrayed. The second book is A Brief History of Seven Killings by Marlon James (awarded the Man Book Prize in 2015). I’m not far into this book and have made the mistake (I think) of trying to read it before I go to sleep: it demands more effort than that and I probably need to move it from the bedside table to the pile requiring more consideration.

My current home is the first time I’ve been able to put all my books on shelves, in different rooms. Previously, I kept scholarly books in my office, but these, too, needed a new home when I left academic life. As I mull over the prospect of moving to a smaller place, I’m conscious of the difficulties of treating my book collection with the respect it deserves. It’s no longer possible to assume that second-hand bookstores or other destinations will welcome them. Yet I’ve bought all of the above books — and others — over the past year. For some of us, book buying is an addiction!

 

 

 

What do We Mean by a “Secular Society”?

In one of his first announcements, recently elected François Legault has declared that he will invoke the notwithstanding clause to immunize a ban on people in positions of authority wearing religious symbols while acting in the course of their employment. The ban will apply to public servants such as teachers, police and judges. The goal is to make it clear that Quebec is a secular society, part of a francophone society that will also be promoted or protected by requiring immigrants to learn French or be exiled from the province (exactly how the latter is to be accomplished remains to be determined).

Removing religious symbols from public sector workplaces  has been the subject of ongoing debate in Quebec. In 2010, Jean Charest’s Liberal government introduced Bill 94 that would ban the provision or receipt of public services by someone wearing a “face covering”; although not using the term, the bill applied to women wearing a niqab, a full face covering. Bill 94 did not pass. In 2013, the PQ government introduced a Charter of Values that would do this, but leave the crucifix hanging in the Quebec legislature (since it is a reflection of Quebec history and culture). Again in 2015, the Liberals introduced Bill 62 to ban the provision and receipt of public service while wearing a face covering (with provision for religious accommodation). The real impact of the bill would be on Muslim women wearing a niqab or burka, since other religious clothing or symbols do not cover the face. Bill 62 passed in 2017. It was said to cover all public services, including, for example, a woman wearing a niqab or burka getting on a bus. The Quebec Superior Court stayed the application of the legislation until the government released accommodation guidelines in May 2018.

Now Legault and his Coalition Avenir Québec plans to ban anyone providing public services from wearing any religious symbol on the basis that someone performing “coercive functions” should not be associated with religion. (He will, however, leave the crucifix in the national assembly, probably the most significant state arena.)

Legault’s stated intention is not to require refusal of services to people wearing religious symbols, but to make the public sector workplace religiously neutral. This approach claims to reflect the position of the Bourchard-Taylor report in 2008 that “agents of the state” (so police and judges, for example) not be allowed to wear religious symbols (presumably someone at the front desk in the transportation department would be able to). Professor Charles Taylor renunciated the view that even “coercive agents” should not be able to wear religious clothing in 2017 because he thought the environment had changed and that people had misunderstood the recommendation and were extending it to child-care workers, for instance.

Is it necessary to deny people the right to manifest their religious beliefs in their clothing in order to have a secular workplace? The objective is to make it clear that Quebec is a secular society and that the public sector workplace should not exhibit religious doctrine, the retention of the crucifix in the location of the law-making body notwithstanding.

To be “secular” is to be not related or connected to religious matters. Thus, for example, no state body should begin their deliberations with a prayer or other invocation that calls on a religious figure. And one would think that a secular society would not have a cross or crucifix symbolically supervising its legislative deliberations. A secular state is neutral with respect to its religious identity, the opposite of a theocracy or even a country with a state religion. It is for this latter reason that whether individual workers are allowed to wear religious attire or not, the actual institutions of the state should not display religious artifacts that suggest a state-sponsored  or supported religion (such as the crucifix in the legislature).

The issue that Legault’s plan raises is the extent to which an individual’s private beliefs infuse the public realm. There is a distinction, I think, between the institution and its infrastructure and the people who work there. I would remove the cross (I’m not convinced that it is merely a cultural remnant of Quebec history that has somehow lost or transcended its religious character). Similarly, I would not permit individuals to “decorate” their public sector space (their office or cubicle, for example) with a religious item.

It probably goes without saying that no public sector employee should be required to wear any kind of clothing or jewelry that has a religious connotation. But does that mean that they cannot? Is an individual wearing a personal item of clothing transferring the beliefs related to that clothing to the state? Although I personally believe in a secular society and would prefer not to have public displays of religious belief, I believe that there is an argument to be made that an individual’s wearing of a yarmulke, turban, hijab or  a cross, for example, does not detract from the identity of the state as secular. Religious symbols behind the judge, on the classroom wall or at the entrance to the police station do, however.

A public sector employee is a hybrid being, both a representative of the state and a private individual. Accordingly, we have acknowledged that certain aspects of the employee’s private life should be accommodated. This is in part what employment standards and anti-discrimination provisions are about. We have loosened the restrictions on employees’ expression of their political views, as long as they do not express them in the workplace. The public sector workplace, that is, the civil service or bureaucracy or front-line activities, is meant to be politically neutral.

Is wearing religious attire more akin to the former or the latter?

Political beliefs may be important to an employee, but a political affiliation does not require the individual to wear particular clothing or jewellery. We know that a government will establish policies that are consistent or at least not inconsistent with their platforms, but we do not expect that individual decisions affecting us (whether we receive social benefits, obtain a liquor licence or receive a favourable decision from a judge or how our children are taught) to be affected by the public servant’s, tribunal member or teacher’s personal political beliefs). We do not know in the usual situation what the employee’s political beliefs are and they usually do not know ours. But political “neutrality”, as it were, goes beyond that. Except for political staff, and although this is not universal, obtaining a civil service position, or a teaching job, or (technically, at least!) being appointed a judge should not be dependent on one’s political views: it should not be affected by whether our political beliefs reflect those of the government of the day.

An individual’s religious views may be an important part of their identity, possibly more so than their political beliefs, and, unlike political affiliations, their religious beliefs may require them to wear religious “symbols” on their person, sometimes in the form of clothing. Their political beliefs should not affect whether they obtain employment. If they are required to wear religious clothing, that is, it is an indispensable part of their religious adherence, to refuse to allow them indirectly means that their ability to obtain employment is being affected by their religion.

The question becomes, then, whether allowing them to observe their religious beliefs through their clothing affects the extent to which the state is in fact secular and the extent to which it is perceived as secular.

While is is fair to say that public sector employees do represent the state, it is also fair to say that the state does not absorb its identity through its employees. A pluralist secular state appears to be that when its employees reflect in dress the multiple religious identities that comprise its character rather than suppression of those religious clothing and other outward signs that are clearly different from the majority and how the state initially appeared.

At the same time, the secular state must require employees with diverse religious beliefs to act in accordance with the rules and guidelines that govern the provision of services as long as these are non-religious in nature. The secular state acts, through its employees, in non-religious ways. Accordingly, while the wearing of religious clothing should not pose a barrier to employment, there may be challenges for employees whose religious beliefs conflict with their duties towards the public. In some cases, accommodation may address the conflict, but in others the resolution of the conflict must be in favour of the secular nature of the state. In this context, there is a difference between appearance and conduct.

There is much more that can be said on this issue. The implementation of a policy that permits the wearing of religious symbols personal to the employee, while ensuring the workplace is otherwise free of religious symbolism may seem contradictory. Permitting religious appearance, but not conduct consistent with particular religious beliefs, may seem hypocritical. What about religious views that have been accompanied by strong political beliefs elsewhere that have resonance in Canada?

My only intention here is to suggest a principled approach to respecting pluralism of belief in an important economic realm while maintaining the state’s secular nature. I suggest that it can be legitimately argued that secularism is best reflected in acknowledging that it accepts a pluralism of religious belief, including in the public sector workplace. This means that employees are allowed to wear religious attire or symbols, but they cannot perform their functions in a manner inconsistent with the demands of state neutrality.

 

 

Why it Still Matters: Reviewing the Bills 5 & 31 Crisis

It seems that Premier Doug Ford has won his first major battle as premier, reducing Toronto council from 47 to 25 members. It also appears that the constitutional crisis over his invocation of the notwithstanding clause (section 33) of the Canadian Charter of Rights and Freedoms has been resolved without his using section 33. Calm has returned to the Ontario political and legal landscape, as far as these matters are concerned, but it is likely to be short-lived. We have learned from this fiasco, and from earlier decisions, that Ford has no regard for political or constitutional conventions and every regard for pursuing an agenda that reflects his own pique and “damn the torpedoes” style.

It also shows us yet again that conflating the political and constitutional roles of the attorney general risks the former overriding the latter, especially, perhaps, in the case of an experienced and weak attorney general.

A brief reminder of how we got where we are and why it matters. With the Ontario Court of Appeal’s decision to grant a stay of Justice Belobaba’s decision finding Bill 5 unconstitutional (and in the course of doing so, delivering the message to the extent possible that the latter’s decision will not be upheld on appeal), we can sit back and review from a (very short) distance the events of the past few weeks and what they presage for Ontario politics in the future.

Ford announced in late July (not long after the June 7, 2018 election) that he intended to introduce legislation to cut the size of Toronto council. There were three problems with this, noted extensively by commentators. Firstly, he had made no mention of this during the campaign. All we had heard was a general and vague promise to cut the size and cost of government. Secondly, the municipal election had already begun. Thirdly, a study had recommended in 2016 that council actually be increased, from 44 to 47 councillors. Not surprisingly, many questioned the shipshod nature of how Ford went about making such a significant decision.

The Progressive Conservative government introduced Bill 5, reducing the number of wards to 25 (and affecting regional governments in the area), on July 30, 2018 and by August 14th, it had received Royal Assent, providing no time for public consultation. To say the bill was rushed is being unduly kind. Despite Ford’s claim that it didn’t make sense to let the current election go ahead, when he would seek to reduce wards subsequently, this is the second “hint” that the motivation behind Bill 5 was suspect.

There is little doubt that the Ontario legislature has the authority, absent other factors, such as the Charter, to enact legislation affecting municipalities, which have no independent status. Their powers derive from the province, a problem highlighted by Ford’s treatment of Toronto and one that requires remedying. This is especially true when the province fails to show sufficient respect for the municipality to engage with it on important matters.

This does not mean that Bill 5 is not suspect. Challenges on Charter grounds seem to have failed, given the Ontario Court of Appeal’s decision (notably a decision “of the Court”) granting a stay of the trial level decision that did find Bill 5 unconstitutional. The Court wasted no words in its assessment that it would not likely survive an appeal (although that nevertheless still remains to be decided after the election). And, indeed, the Superior Court decision did stretch the parameters of the Charter’s guarantee of free expression and its linking of the guarantee of the right to vote with the right of free expression.

Significantly, although the government did appeal the initial decision, this was not enough for  Ford who, before obtaining a stay, jumped with both feet into the sensitive area of the Charter’s notwithstanding clause (section 33). Making his disdain for (and perhaps ignorance of) the political/judicial relationship clear, he announced, “I was elected. The judge was appointed” and that “What’s extraordinary is…a democratically elected government trying to be shut down by the courts.” He followed this with the introduction of Bill 31 containing the override; however, although there was considerable legislative debate and challenge to the override’s use, it was upstaged by the stay of the original decision. This does not mean it would not be resuscitated in the unlikely event that the initial decision is upheld when the appeal of the merits is heard.

Ford’s use of section 33 was a first for Ontario and received considerable blowback, although probably not from those Ford considers his supporters. We shouldn’t expect that he won’t invoke it again. His response is more likely to be “I’ll show you!” than “I’ve learned something about constitutional practice and conventions”. And it seems from this experience that we cannot expect anything better from the attorney general, Caroline Mulroney. While we do not know what she (and perhaps others in the more moderate wing of the party) might have tried to do in private, she has shown herself to favour her political rather than her constitutional role and we likely cannot look to her to ensure that we do not fact this problem again, unless more experience is accompanied by more confidence to challenge her boss.

It can be argued that Bill 5 failed to satisfy the rule of law. On the surface, Ford’s rationale that it was not cost effective to wait until after the current election to introduce the bill, for which there had been no hue and cry, is weak and assumes that the bill would pass the legislature (although it probably would, it’s another thing to assume it) and would be found constitutional if challenged. Bill 5 was based on no studies or consultations. The figure of 25 was determined solely by reference to the number of constituencies in Ontario at each of the provincial and federal levels, ignoring the different role played by municipal councillors and their relationship with their constituents compared to their provincial and federal counterparts. No evidence supported the assertion that reducing the number of wards would save costs, as Ford claimed. Ford also justified Bill 5 as a remedy for what he described as “‘the most dysfunctional political arena in the country‘”. It did not go unnoticed that some of the most dysfunctional times at Toronto council occurred during Ford’s late brother Rob’s tenure as mayor and Ford’s own time as councillor.

That the Bill “came out of the blue”, threatened to disrupt an ongoing election (which is now ongoing, in fact, relatively smoothly), was not based on evidence (and indeed, evidence in the 2016 study contradicted it), failed to recognize the nature of municipal government and councillors’ responsibilities and the history of Ford’s own and his late brother’s experiences on council raised red flags about why Ford introduced the legislation and its timing.

All these factors support a contention that Bill 5 was introduced in bad faith, prompted by Ford’s desire for vindication and to “get back” at those councillors who had opposed him and treated them with disdain. Rob Ford had wanted to halve council and Bill 5 represented a post-death vindication of Rob. It is true that Bill 5 was not a “diktat” of Ford, it was enacted by a majority of the  legislature (all Tories). Nevertheless, it is hard not to conclude that the impetus for Bill 5 came from Ford, not from the party or from other members. This is a case where it can be fairly be said that improper motive and use of the legislative process lies with Doug Ford.

There is a very good chance that he has succeeded, not just in the short term, for this election, but at least until another government decides to increase the number of Toronto wards again. Ford’s abuse of the system worked for him and we can full expect that he will use whatever tactics he needs to achieve what he wants.

Ford’s latest thrust is to establish a committee to look into the reason for the deficit left by the Liberals, promising he’ll reveal the “biggest coverup in history“. Except that there isn’t a coverup, since the issues he’s talking about were revealed prior to the election. At his annual BBQ on the weekend, his supporters chanted “lock her up”, referring to Kathleen Wynne.

We’re on notice, and have been since the campaign, that Ford cares not a whit about respect for the political system, for distinguishing Canadian approaches from south of the border, or indeed, adopting some of them (although he has, so far, supported the federal government on NAFTA) or for accuracy. Doug Ford is a “street fighter”, at least figuratively speaking; he punches first and punches harder when someone tries to push back. He doesn’t care about rules, protocols and conventions. From time to time, the political landscape can use some disruption, some shaking up, but when a premier operates on disruption and chaos for the sake of chaos, we’re in for a jarring and jerky few years that augers ill for Ontario as a whole.

How is Doug Ford Shaping up as a Populist?

Populism is a catch-all phrase for a movement that in some way challenges the status quo; but how it does so may vary. It may be, in simplistic terms, be right-wing (for example,  and Donald Trump in the United States) or left-wing (Venezuela’s Hugo Chavez and his successor Nicolás Maduro, Bernie Sanders in the United States), based on hostility towards immigration (several of the European populist governments and Donald Trump) or to capitalism (again, Bernie Sanders). It likely targets the judiciary (because one of its purposes is to keep government and legislative action within certain bounds (Trump, the Polish Law and Justice party, Viktor Orbán in Hungary). Not all populist movements are autocratic in nature (or become so if they gain power), but many are (of those mentioned above, only Sanders does not attack all institutions and is focused only in a general way on reducing the power of the banks).

Populism in any meaningful sense thrives on divisiveness, pitting segments of society against each other. It is usually manifested in an individual who plays the demagogue, appealing to the populace with simple slogans and easy solutions to what ails them.

Thus Doug Ford’s slogan “For the People”, while seemingly inclusive of everyone, is actually intended to be a rejection of the so-called “elites”. His campaign was built on encouraging divisiveness. Doug is the “every guy” who, despite his wealth, is an outsider who knows what his kind of crowd likes: “a buck a beer”. The rejection of “the elites”, however, is not only about people, but about rejection of those institutions that have been developed by “the elites”, including the mainstream press, the independence of the judiciary and other institutions that have been created to maintain order and ensure the smooth functioning of society. And here lies the rub: for populists, the elites who generally speaking do control those institutions as a result of their education and organizational skills, but also often as a result of their family heritage, operate the institutions to maintain their own power and keep others in their place. (That Ford himself inherited his business (as did Donald Trump) and whose father was a successful politician misses the point: he lacks the gloss and smoothness of elite members.)

When populists do gain power but fail, they blame the elites for subverting them. Elites do the same: blame populists for subverting the institutions that they, so-called elites, consider necessary for effective functioning of society, for democracy and for the economy in ways that pursue particular objectives or values.

Doug Ford is not the first Canadian populist, but he is the one in power now. Ford has been described as “Trump-lite”; one might think of him as “mini-Trump” (a letter writer to the Globe and Mail described him as “Trump of the North”). The reason for comparing Ford and Donald Trump, who casts a larger shadow over traditional and established — and now progressive — expectations, is to see what we can learn about Ford — and the future of Ontario — by tracking Trump. They share some important traits, but as far as we can tell at this point, they are also dissimilar.

What is important about them both is that they claim to speak for “ordinary” people, castigating the so-called “elites” for emphasis and neither respects existing institutions. Where they differ is perhaps in their bigotry, with Trump being racist, something we haven’t seen particularly in Ford. Although he ended the arrangement with the federal government in relation to resettlement of asylum seekers, he has also said he is supportive of immigration and immigrants. Withdrawal from the agreement might be seen as an indirect attack on the movement of immigrants into the province, but it is also akin to the challenge to the federal carbon tax plan. Both are broadsides at the federal government. (Ironically, on that point he is resorting to the very courts he has argued don’t have the right to overturn legislative enactments — more on that below). He is catering to religious minorities who do not like the new sex education curriculum by reverting to the old curriculum in order to undertake what he advertises as “the largest consultation ever in Ontario” on education (this despite the extensive consultation prior to creating the new curriculum) and brought a halt to creation of supervised injection sites without further study (he has been clear that he is against them).

Without diminishing the substantive nature of these issues, most significantly, perhaps, Ford has acted quickly to realize his agenda within days of assuming power as premier. And equally significant, this is a very personal agenda: he is determined to fashion Ontario in his image.

I don’t intend to rehearse all the ways Donald Trump has challenged the status quo or has taken over the Republican Party in the name of populism (or how the Republicans have taken advantage of Trump to accomplish a few long-term goals). Goodness knows, we’ve had enough of that. Let me provide more or less a summary of what we have observed going on during the last going on two years and then consider Ford’s conduct through this lens.

He claims to be working for the common or ordinary person, yet his tax cuts will eventually harm them, as will efforts to dismantle Barack Obama’s Affordable Care Act. He used as his slogan “Drain the Swamp”, but has put together a cabinet (initially and replaced) composed of members of the economic upper class who have in many cases used their positions for personal gain and spent taxpayer money on expensive furniture and first class flights, among other things. He posits “the elites” as the enemy, yet he himself lives extravagantly, and ridicules the elites by claiming he has a bigger apartment than they do — this with the goal of aligning himself with the ordinary person.

He has sought to undermine both the judiciary and the free press. He has captured the Congress (at least until the coming mid-term elections perhaps), which has failed in performing their proper function in a system of checks and balances. In many ways, he has ignored the norms and expectations of the presidency: his erratic tweeting and his failure to put his businesses into a blind trust (they are in the hands of his sons), his upending of long-established international economic arrangements through impetuous imposing of tariffs, his preference for dictators rather than international “friends” and much else have the effect and probably the goal of disrupting the established order.

Some of this is a reflection of his personality: impetuous, narcissistic, hungry for praise (to the extent of constantly praising himself), a high degree of ignorance about the world and processes and lack of interest (or capacity) in learning about them coupled with arrogance and a belief that he knows more than anyone else, paranoid, petty, vindictive and untrustworthy. Indeed, one might argue that many of Trump’s actions result not from a deliberate effort to achieve specific goals, but are merely manifestations of his psychology much more so than most people and much more so than is desirable in a president of the United States. However, they are all directed at disrupting the status quo, whether prompted by his own agenda or that of others. Trump has been a very effective demagogue attracting the ongoing support of a surprisingly large number of people, although he may be losing support.

Watching Trump has given us a head start on understanding Doug Ford; we’ve also had the advantage of seeing Ford’s behaviour while he was on Toronto Council. (Like Trump, election to “high” office does not seem to have matured him.) Although Ford maintains he governs “For the People”, “the People” turn out to be a rather select group. They aren’t people living on a limited income, whether unemployed or the working poor. He wasted no time in reducing social assistance increases and cancelling the pilot project about a guaranteed income. We can expect his government to repeal the amendments (in whole or part) to the Employment Standards Act that would have improved the working conditions for part-time and casual workers and others, many of whom could be described as “precarious”.  He will not be raising the minimum wage to $15, although he will leave it at $14. Ford’s “buck a beer” slogan (and implementation, although not effectively) is meant to substitute for effective policies and programs that might actually improve the conditions of workers and the poor. It tells us what he really thinks about “the People”.

Ford’s decision to reduce the size of Toronto council through Bill 5 reflects both a vindictive streak and a desire to disrupt . This was a chance to get his own back at a council and councillors who had little time for him or his brother, Rob. By giving no notice during the campaign and making the change after the election period had begun, he was able to create the greatest chaos. And lording it over a municipality, especially Toronto, he could exercise a provincial power that (almost) is without restriction.

He has displayed both ignorance and arrogance, as well as a disregard for established norms and constitutional principles in his decision to invoke section 33 of the Canadian Charter of Rights and Freedoms to override the Superior Court decision holding Bill 5 to be unconstitutional. (Reenactment of the legislation includes the override.) (His neophyte attorney general, it is noted, did not appear with Ford when he announced his use of section 33.) This latter is a gift to his supporters who admire his maverick approach and how he’s “putting it to the elites”.

There are, of course, many people who believe in parliamentary supremacy, despite the enactment of the Charter by Parliament, but there is a significant difference between them and the premier of Ontario. Ford summed up this on-going tension when he said “I was elected. The judge was appointed.” (Unfortunately, in addition to revealing that he has no appreciation for the complexities that govern the written constitution and constitutional conventions, he also displayed his ignorance of the system by stating that the judge was appointed by “McGinty”, the former premier of Ontario, when superior court judges are federally appointed.)

More significantly, as a newbie with no experience in governing other than as a municipal councillor or  in constitutional matters, he jumped headfirst into upending over 25 years of constitutional norms, during which, other than in Quebec, section 33 had been invoked only rarely and not always implemented and never in Ontario. The override is part of the constitution and part of the democratic process. It is in inception and impact a political provision, since it reflects a compromise in the constitutional debates resulting in the Constitution Act, 1982, including the Charter, and it expires after five years, leaving the legislation open to judicial review unless the legislation is reenacted with section 33 included.

Ford also intends to appeal the decision (this is the normal thing to do and there is some good chance of success). However, because Ford had rushed through Bill 5 in the first place, waiting for the outcome of an appeal, even if undertaken quickly, would pose even more challenges for the Toronto election. Invoking the notwithstanding clause reverts the election to the status quo ante reflected in Bill 5, an election based on 25 wards. Thus Ford and his attorney-general justify invoking section 33 as a way of bringing stability to the election process. Yet Ford himself is the reason for the instability.

What have we learned if Ford continues as he has started? The model of the populist leader in a democracy south of us provides some insight. The democratic system works only when everyone plays their part. In the United States, Congress is meant to counteract an impulsive, erratic president, but so far it has not done so. This is the risk of the party  holding the presidency and Congress. In Canada, with a majority government we must rely on the members of the governing party to challenge their leader. Trump often makes decisions (apparently) without much thought, often merely to allow him to act the bully or assert his superiority. This seems to be the approach Doug Ford has taken so far with respect to most of the decisions taken within a short time since his election. In both cases, they relish being unpredictable and pursue personal agendas. And in both cases, their greatest flaws override respect for the institutions that together make up democratic governance and the rule of law. Although elected (by the Electoral College), Trump governs as a strong man. Doug Ford is on his way to doing the same. He illustrates that the process of governance is as important as the substance of policies and political decision-making.

Making Sense of Everything…

If only that were possible. Looking at the alternately confusing, disgusting, scary tweets and conduct south of the border, the actions of angry, disillusioned (?) murderers on Toronto streets, the chaos that is Brexit, the brazen actions of authoritarian rulers purporting to be democratic, the treatment of minorities such as the Rohingya (and the sad failures of icons such as Aung San Suu Kyi to respond), ongoing efforts to achieve justice writ broadly:  all these and much else make (seeking some good news) the evidently happy rapprochement between Eritrea and Ethiopia pale in comparison.

I told myself that when I finished at the Law Commission of Ontario, I’d start a blog that allowed me to say pretty much what I wanted, untethered by the sense of responsibility I felt to  the institution. It’s only taken  two and a half years to really get started (I’m ignoring an earlier effort that told me I really didn’t know how to create a blog).

So here it is at last. There’s no particular subject focus, no particular approach, just musings on the events of the day and my interests.