Maybe it's time we dragged our eyes away from the Charter

Manitoba Court of Queen's Bench Chief Justice Glenn Joyal spoke at the Canadian Constitutional Foundation conference in January, 2017 about political culture in the post-Charter era.

I am indebted to Professor Leonid Sirota for news of the talk, thanks to his blog post in which he disagrees with it, here. More about his disagreement later.

Chief Justice Joyal's opening premise is that "Canadian political culture... has now fundamentally changed." (I quote that with confidence thanks to the transcript of the talk being available at Advocates for the Rule of Law). He went on to eloquently and informatively support that claim. I think I am correct in portraying his position as advocating judicial restraint and legislative recovery as the remedy, but I don't like to try to summarize; his position is comprehensive enough that I hope anyone interested will go to the source material, not take it from me.

Remedy aside, his premise forcibly reminded me of a 1969 article by two Yale law professors, Harry Wellington and Ralph K. Winter Jr, who wrote, in "The Limits of Collective Bargaining in Public Employment:"

"What is wrong with strikes in public employment is that because
they disrupt essential services, a large part of a mayor's political constituency
will press for a quick end to the strike with little concern
for the cost of settlement. The problem is that because market restraints
are attenuated and because public employee strikes cause inconvenience
to voters, such strikes too often succeed. Since other
interest groups with conflicting claims on municipal government do
not, as a general proposition, have anything approaching the effectiveness
of this union technique-or at least cannot maintain this relative
degree of power over the long run-they are put at a significant competitive
disadvantage in the political process. Where this is the case, it
must be said that the political process has been radically altered. And
because of the deceptive simplicity of the analogy to collective bargaining
in the private sector, the alteration may take place without anyone
realizing what has happened."

Emphasis in the above quote is mine. Although the term "political culture" is not precisely analogous to "political process," it seems to me that the chief justice's overall message is the one with which Wellington and Winter close the paragraph. What I heard Chief Justice Joyal saying was that something has changed, and it is time we realized what has happened.

But wait. Chief Justice Joyal is talking about the Charter. Wellington and Winter were talking about public sector collective bargaining. Same outcome, different cause. Unless....?

Is it possible that we attribute, in Canada, to the Charter things that are more correctly attributed to groups that have most successfully leveraged the Charter to achieve their objectives? Organized labour, specifically public sector organized labour, is one of the groups that has done precisely that, and that might account for this convergence.

Let's look at the timing. Wellington and Winter wrote in 1969, at which point there was already considerable experience with public sector bargaining in the US - they were not making predictions, but observing what was already going on. Public sector collective bargaining came to BC in the '72-'75 period, and progressed at about the same pace in the US and Canada. The Charter was enacted in 1982; early in the process. So the overlap is close enough that one could mistake the effect of one for the effect of the other.

One can delve deep into case law or into political history (or into union history for that matter) and find support for the thesis that organized labour has gained power continuously since the Charter was enacted, even if interpretations might vary as to whether they have enough of it yet, or not.

But that doesn't mean it was because of the Charter that unions gained power. Even the fact that their project had a Charter-based name - "the constitutionalization of labour" -  does not mean that their litigation work was the source of their power growth. It might just mean that colonizing the Charter was one of the things that organized labour had to do in Canada to get the power they wanted to have. In the US, maybe they had to do different things at different times, in the courts and outside of them. The end result is the same: it's now between tough and impossible for ordinary citizens to outgun organized labour in court or outside of it.

What works for one group is likely to be copied by others - and it has been. Chief Justice Joyal refers more broadly to "the de-facto constitutionalization of political and social issues." Again, these trends cross borders, as Chief Justice Joyal recognizes. During these years, the same forces have come at the courts, at legislatures, at societies from many diverse sources, such as through academe, through NGOs, and via international convention. This too may account for the fact that the US and other Anglo-American democracies are experiencing similar changes in political culture in the same time frame as Canada without having the element of the Charter. It's just that in Canada, getting Charter validation is one of the boxes you have to tick off to, for example, get your assisted suicide movement to a certain point.

There may be many reasons why it is important and timely for assisted suicide to be available. It may or may not be rational to frame it as a right or a freedom. That may simply be what you have to do to have it made into policy in Canada. So to attribute advances in assisted suicide or any other policy changes to the Charter, or to the courts in the time of the Charter, may lead to a flawed analysis.

Professor Sirota does not, if I understand him correctly, take issue with the chief justice as to whether the courts now out-power legislatures. They diverge, rather, on the issue of whether this is a good or a bad thing, Professor Sirota having more faith in the courts as an institution than he does in legislatures.

But I don't think either position fully understands the courts as an institution. Both have made a number of assumptions about the courts, as well as about legislatures, that can be dissected in such a way that a whole new perspective emerges.

What if legislatures have not been out-powered by the courts, but have rather quite happily retired into the background and let the courts do the dirty work of enacting unpopular or divisive policies? What if the courts are not agents of their own growth, but simply reacting to forces and opportunities that are put before them? And what if the public has let all of this happen but can correct it at will when the mood strikes them?

Which brings me to the assertion that the other element that neither combatant in this conversation fully appreciates is the public.

The discussion between Chief Justice Joyal and Professor Sirota is a discussion between experts, and one of the points on which they differ is on the topic of the non-expert view, although it must be acknowledged that the chief justice says less on this topic than the professor does. In the end, their view of the public may be both the most explosive point at issue here, and also, the biggest weakness in both their positions. Professor Sirota views the public as ignorant - the fact that legislatures are directed by idiots is a primary reason why he prefers to trust the courts. Chief Justice Joyal views Canadians rather as either uninformed or, if informed, then powerless.

Both view the court as the actor, the public as either passive recipient, reactive element, or victim. It's my premise, however, that in a democracy, such a view is wrong. The public is always the primary actor. It's just that what motivates the public to act is a bit unclear... until it happens.

The expert/non-expert divide is much discussed these days, post-Brexit and Trump, post-Rob Ford and Vancouver transit referendum, and many experts have weighed in on it (paradox). But none of them has actually put a finger on the essential difference between experts and non-experts. Experts need to analyze, understand, justify, and seek permission to do things. Non-experts, the public, don't need to do any of this. They simply do what they feel needs to be done. And they don't have to justify it to anyone.

So while I agree that the court-legislature imbalance is a problem and while I do not under-appreciate the gravity of the situation, it is my opinion that in the long run, the people will be able to correct it. A podcast interview with Chief Justice Joyal after his speech at Runnymede Radio even shows one way they could do it: Section 33 of the Charter, the notwithstanding clause. All that is needed is for the public to elect governments that will invoke it.

Comedy again: the people's untrustworthy representatives who had been elected by the ignorant in 1982 put a clause in the Charter that allows legislatures to pretty much bypass the courts at will. That's not to say that's how it will happen, of course. In real life, the mechanism of correction is always a surprise.

The public is dismissed as non-expert, or ignorant, at experts' and institutions' peril. The public may not be able to dissect a fine legal point out of a complicated case or track the legal history of section 7, but they can, to a whisper, detect the moment at which a power imbalance has gone too far and a recovery must be made.

The public also has a reservoir of power that not many people recognize or appreciate. After every election, everyone bemoans low voter turnout, blinded by the belief, of course, that any voters who didn't bother to turn out would have voted with the complainer. But that position fails to appreciate what all those un-cast votes actually represent. They are a reservoir of power that, if mobilized, could change the political scene overnight. They represent a reminder to the institutions of democracy and to the experts in them: you govern with our consent.

So Job One for every political institution, including political parties, is to not disturb that quiescent force. The beauty of the system is that it is actually a very efficient use of the public's time. Very few people actually have to vote in order to decide who governs. Whether a leadership is elected by 48% of the electorate or by 3% of it, their duties and power are the same. They are supposed to govern in the interests of their region and everyone in it: those who voted for them and those who voted against, and also for those who did not vote.

The most useful definition of democracy I've ever heard came from a National Geographic article in which a political agent from a developing nation - one with a history mired in civil war - was interviewed. He identified the orderly transfer of power as the key attribute that differentiated the democratic ideal from what his nation had experienced.

So as I see it, the fact that we enjoy an orderly transfer of power to whoever is elected is more important by far than who we actually elect. I have felt for some time that we over-attribute what governments do to what parties they are or the personality of their leaders. To some extent - as I am arguing that the courts do too - governments respond to the conditions, opportunities, and challenges (and finances!) of their time in office. I suspect that some 3 out of every 5 policies that a government passes would have been handled exactly the same way had the opposing party been elected instead.

In other words, the reason that section 33 has not yet been invoked may not be because the people have not elected governments that will invoke it, or that will otherwise meaningfully override the courts, but because the conditions have not yet arisen that would induce a government to do so. The need has not been felt acutely enough. So the sleeping voters may not even have to mobilize to correct this imbalance - the governments we already have may do so when necessary. Or, I should say, they may do whatever is necessary to assert the authority they are supposed to have.

Just as they got section 33 into the Charter.

Chief Justice Joyal uses the term "ambassadors" for the Charter, taking the term from a speech recently given by the present Minister of Justice, the Honourable Jody Wilson-Raybould, who described herself as "an ambassador for the Charter." But let's keep in mind it was the very architect of the Charter, Pierre Trudeau, who invoked the War Measures Act. Governments do what they have to do when the conditions demand it, and while this government is doing many things that maybe no other government would do, I would submit that if it faces a real threat to its sovereignty, it too would do what has to be done, Charter and courts be damned.

Similarly, the courts, when that time comes, may quite properly cede precedence to the legislatures rather than battling them for it. Judicial restraint is unlikely in the presence of no incentives to exercise it. But on the day that being restrained and saying no to special interests becomes what the courts have to do to survive, they will do so.

But back to Wellington and Winter. Were they right, that the political process has been fundamentally altered? I'd say yes, as would anyone who has tried to achieve a political aim contrary to what organized labour or certain other current forces want. And I believe that is Chief Justice Joyal's essential message, one which Professor Sirota, if I read  him correctly, does not really oppose.

But there may be room for doubt that it happened "without anyone realizing what has happened."

The constitutionalization of labour project suggests that unionists and labour lawyers, at least, know darn well what has happened because it has been deliberate. That impression is affirmed by an article whose title quotes a BC teachers' union agent: "Structuring reality so that the law will follow." And so do all the other groups that have deliberately and successfully used the Charter as a tool to advance their social and political agendas.

And I think the public realizes it too, both unionized and non-unionized. If you tune into conversations among unionized public sector workers, it is palpable that they feel immunized by their Charter wins to the extent that they can articulate contempt for the public. And if you tune into conversations among the public at large, as can now be done in the on-line comments section of any major media story related to public sector labour, it is easy to see that contempt and resentment are more than reciprocated, and that people understand very well that elected officials are apparently powerless relative to organized labour, and that they know this is wrong.

Even, as I've suggested above, legislatures and courts themselves, and all the experts in them including the two whose dialogue is my topic today, may recognize very well that there has been a sea change in power distribution.

But what I think is possible is that even though everyone understands what has happened, no one correctly identifies, exactly, what really happened. That is what the superimposition of the two dialogues - public sector collective bargaining (USA 1969) and the impact of the Charter (Canada 2017) - shows. In Canada, we think everything that happens is because of how the courts have interpreted the Charter. This is particularly likely in a conversation between two experts in how the courts have interpreted the Charter. But if exactly the same outcome has occurred where there is no Charter, then it is likely that we are wrongly distributing both blame and credit. And with blame and credit wrongly distributed, proposed solutions are also going to be wrong.

This is where it becomes important that the element of "the public" is correctly understood.

Experts, analysts, and diagnosticians may argue about what caused what to happen and how it should be fixed. What the public has, however, is an unerring capability to know exactly where it hurts, and to identify the moment when the pain becomes unbearable. When it does, they'll fix it, one way or another. They won't analyze, they won't explain, they won't weigh pros and cons; they won't justify. They will simply act.

Professor Sirota very wisely brings up the issue of incentives as a way to evaluate and predict institutional behaviour. He believes that the courts are better incentivized to make policy that is in the public interest than legislatures are, which are constituted so that they pander to idiots. I would take issue with this view of how the courts are incentivized, but it is not germane to the topic of this post to do so. Suffice it to say that when the public takes action, the courts will be reacting, not acting, and that their incentive structure will quickly change.

I'm not the biggest fan of my fellow travellers in the public realm sometimes, but on the subject of power imbalance, it simply doesn't matter whether the public is ignorant or not. They will prevail to correct a power imbalance in the end, and if the experts are wise and wish to survive the correction, they will put their efforts toward appreciating where the pain is being felt, and relieving it as soon as possible, rather than discussing the colour of the bandaid.