RSS FeedThe monarchy in Canada
The recent royal visit offers a good chance to talk about monarchy in Canada. Besides just being nice Canadians, the people who greeted the newly married royal couple were often ecstatic, filled with genuine love for the two people, one of which has done nothing of significance while the other has never been heard of until recently. Despite a minimal role in Canada, the monarchy seems to enjoy support here, and the republican groups occupy the margins of our political discourse. But the history of the Canadian democracy is the history of overcoming the monarchy. All the good things we are proud of: the rule of law, democratic elections, and civil rights—emerged despite the monarchy and often out of conflict with the monarchy. Today, Canada’s democracy is the fruit of the monarchy’s defeat. The royals have zero power in this country. The Queen is Canada’s head of state only on paper, and many people don’t know or remember that this is the finale of a centuries-long fight between the people and the monarchy. But besides the remaining formal royal footprints on our political system, there are other, more substantial remnants of monarchy in the Canadian government and legal system.
The less monarchy we had in Canada, the more democracy we had. The history of Canada’s democracy is the history of pushing back the monarchy until it was reduced to a rubber stamp for our democratically elected legislators. It is the triumph of the Canadian democracy that the Royal Assent is a formality. Monarchs have not always been as likable as the young couple from London, UK. In 1776, the US Declaration of Independence called the British rule “absolute Despotism.” Five centuries earlier, English nobles forced their king into signing
Magna Carta—a historic document that granted civil liberties and limited the royal power. Magna Carta, a blueprint for modern democratic constitutions, came about in spite of the monarch. The barons basically fought with the king for their rights. That’s the role of the monarch in our democratic tradition: give up more and more power to the people as the royal vigour increasingly declines.
The era of the strong monarchy also represents the backward times of racism and religious discrimination. The monarchy itself remains discriminatory: no Catholics and no bloodline outsiders. If any Canadian institution used the rules of succession to the British throne, the public would ostracize that institution and the courts would probably stop the practice. But the Ontario Superior Court of Justice refused to apply anti-discrimination provisions of the Charter to the rules of succession to the British throne. In 2003, Justice Rouleau of the Superior Court essentially recognized the British throne and the Queen as a foreign institution governed by foreign rules inherited by our constitution (O’Donohue v. Canada, 2003 CanLII 41404 (ON SC)). Since we can’t change the foreign rules and we can’t change our constitution, we are stuck with the discriminatory foreign monarchy.
Some of the best things about Canada are the rule of law, civil liberties, and a democratically elected legislature. The view that the monarchy somehow links us to the English legal and political tradition that gave us all those things is quite absurd. We owe much of our legal and democratic tradition to England, but that tradition emerged in England despite the monarchy. Democratic rights and the independent judiciary were a concession by the monarchy in favour of powerful land owners, first, and the general public, later. Besides, much of our Canadian democratic tradition is completely domestic, and some was borrowed from the US. While we have two Constitution Acts, the UK doesn’t even have a written constitution.
When we see the royal couple on TV, we should remember that they symbolize an institution that fought long and hard against civil liberties, the rule of law, and a democratic legislature. That institution has completely lost its power as a result of this conflict. The people and the democracy have won. For some reason, we still allow the royals to live in palaces and act out a fairy tale at our expense.
But there are other dangers in the monarchy fetish, especially in its recent revival. Our government still retains some qualities of the monarchy. Generally, these powers of the Prime Minister and the Cabinet are called the royal prerogative. These are the powers that the monarchy has always enjoyed but that do not come from the constitution, an act of parliament, or the common law. These are basically the powers that the government has not surrendered to Parliament or to provincial legislatures. This is, for example, the power to have foreign relations. When the courts reviewed the Prime Minister’s decision not to request the repatriation of Omar Khadr, government lawyers argued that his decision was an exercise of the royal prerogative and not subject to Charter scrutiny. The courts have rejected this position (Canada (Prime Minister) v. Khadr, 2010 SCC 3).
Besides the royal prerogative, the government has a wide array of powers that give it discretion in making decisions. Discretion means the government is less accountable about the rules and reasons it follows in making a decision. Often we want to give the government discretion for the sake of efficiency, but the courts must be able to control the limits of discretion and to overturn obviously unreasonable decisions. This is how the rule of law works.
Fascination with the monarchy can produce or can be a symptom of a lower expectation of accountability from the government. We may defer to the government more and more. The danger is when we start treating the government as a benevolent ruler. Governments are made of people, and people are corrupted by unaccountable power. The history of democracy in the UK and in Canada was a history of people taking the power back from the ruler.
The ceremonial formality of the Queen also breeds constitutional uncertainty, for example, when the Prime Minister prorogues Parliament so often that some parts of the public genuinely expect the figurehead governor-general to refuse to cooperate. She of course, did cooperate and that was the right thing to do from the legal standpoint, but the potential for a crisis exists.
Do we even need a head of state? It is an inheritance from the Middle Ages, when every nation had a powerful ruler. Modern democracies have leaders but they should be professional officials hired for a limited term, and nothing more. Prime ministers should not generate patriotic fervor. They must be professional politicians who embody certain popular political platforms. Let’s hope that prime ministers cannot mess up too much, and fortunately we have the ballot and the independent judiciary to hold them and their ministers to account. A foreign figurehead doesn’t really figure in this equation.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Weird Legal News: Capricious Juries, Secret Recipes, and the Constitutional Right to Swear
Here’s a digest of some articles I collected this week that are either funny, interesting, or just plain weird.
- Blind Justice? Attractive Get Breaks with Juries – CBS News
In completely unsurprising study results, Cornell researchers have found that juries are significantly more likely to convict an ugly person than an attractive person in identical circumstances. Where evidence is strong and the case is serious, attractiveness plays less of a role. But where the charges are minor, or the evidence is ambiguous, ugly people are at a serious disadvantage. They get higher sentences too — way higher! - Toilet Brush ‘Blunder’ Death – The Sun (UK)
A man is taking legal action after an inquest found that his wife died due to serious errors by her examining doctors. The woman had somehow fallen onto a toilet brush handle which embedded itself in her buttock. The foreign object was missed by doctors. The woman died of complications during surgery to finally remove the handle — four years after she had fallen on it. - Pizza in Naples ‘cooked with wood from coffins’ – Telegraph (UK)
Prosecutors in Italy are claiming that the oak wood being used in Naples’ pizza ovens has come from a grisly source. It is alleged that gangs are digging up coffins from the local graveyard and selling the wood to owners of local pizza parlours looking to save on costs. - U.S. rights group sues to protect right to swear – Vancouver Sun
The American Civil Liberties Union is taking action against Pennsylvania police. Apparently, the cops have been arresting (and in some cases jailing) about 750 people per year simply for uttering profanities or making profane gestures. The ACLU claims that the disorderly conduct charges are unconstitutional, because swearing is protected speech under the First Amendment.
I’ll post more articles when I get some free time.
How to secede from Ontario
So what if Toronto became a province? Why would that be a bad idea? Regardless of the arguments for and against, Toronto can never become a province unless there is a lawful way to that goal, and there are several. In any case, separation will require a referendum in the city. If Toronto wishes to leave, Ontario will have to start good-faith negotiations. And even if the talks break down, there seems to be a constitutional way for Toronto to become a province without Ontario’s consent.
First, any decision to separate will require a referendum in Toronto. Just a vote in the city council will not be enough because the issue is so momentous. We have some legal precedent on this issue because the independence question was raised in referendums several times in Quebec. In the Reference re Secession of Quebec, the Supreme Court said that a successful referendum will give necessary legitimacy to Quebec government’s effort to secede. I don’t see any other way to give legitimacy to the effort of Toronto to form its own province.
Second, if the people of Toronto say yes to becoming a province in a referendum, Ontario will be under an obligation to negotiate with representatives of the city. This also follows from the Reference re Secession of Quebec. The difference, of course, is that Quebec has original sovereignty as a province, and the City of Toronto is legally a creature of an Ontario statute. But in essence, the same principles should apply: if a huge number of people in a large community want something, the government should listen and talk. Besides, Toronto is not just a city: it’s older than both Ontario and Canada. Its population and economic output are bigger than population and GDP of nine Canadian provinces. It’s a critical part of the country, and if it speaks loudly about its own destiny, Ontario has a legal duty to negotiate.
There are at least three possible outcomes of these negotiations:
1. The Legislative Assembly of Ontario passes a law granting unique and broad powers to the City of Toronto. The new authority should approach that of a province. The law should be a super-statute like the Ontario’s Human Rights Code. It should prevail over any other Ontario law. The problem with this solution is that Queen’s Park will keep the power to change or repeal this statute despite its “super” attribute. Unless there is way to bind the Ontario legislature with stringent amendment limitations like those found in the Canadian constitution, the super-statute will last only as long as the political will of the provincial parliament.
2. Ontario adopts a written constitution with amendment restrictions similar to those of the federal constitution. The new powers of the City of Toronto become a part of the Ontario constitution subject to amendment only in rare cases of clear consent of a great majority of Torontonians and Ontarians. I have no idea how to make this work. When Canada needed a constitution binding on its own parliament, it had to ask the UK parliament to pass a special law. It’s unclear how the federal parliament could play the part the UK parliament once played for Canada, because a future Ontario government could challenge that intervention on federalism grounds. How a province can adopt a binding constitution is a great topic for legal scholars, but I don’t see a practical way to do it.
3. Canada amends its own constitution making Toronto a full province. That’s the best way for the city. It will ensure more legitimacy and legal certainty so Toronto can focus on its future instead of endless litigation with Queen’s Park. Sections 42 and 38(1) of The Constitution Act, 1982 set the procedure for forming a new province: consent of the Parliament of Canada and legislatures of at least two thirds of Canadian provinces that together have at least half of Canada’s population. In my reading of the Constitution, Ontario’s consent won’t even be necessary, but if Ontario says no, then Quebec’s and probably BC’s yes will be required. Imagine the headlines: “Quebec helps Toronto secede from Ontario!”
Hopefully, it will not come to this, and the growing crisis in the relations between Toronto and Ontario will be resolved. But if Toronto is determined to get a special status to reflect its role in Ontario and Canada, it certainly has lawful paths to that objective. What’s needed is the political will on both sides.
(Post sponsored by AdviceScene)
Do CRU emails show FOIA wrong-doing?
There’s been a lot of hype in the past few days about a batch of emails that were either hacked or leaked from the University of East Anglia’s Climate Research Unit (CRU). In the view of some opponents to climate change legislation, these emails depict collusion and conspiracy among leading climate change scientists. Other contrarians accuse at least one scientist of outright illegal conduct: violations of UK’s Freedom of Information Act (FOIA).
Hundreds of emails spanning well over a decade were released, but the ones important for allegations of illegal conduct are those where some of the scientists discuss the implications of the newly (in the UK) enacted FOIA, those that discuss how to deal with FOIA requests, and one that directs the deletion of certain emails.
I’ve learned a little bit about the US’s version of FOIA, so I thought that it would be interesting to examine this accusation of illegal conduct – at least, to the extent that a Canadian studying law at an American law school can explore British information and privacy law. Read more
Passwords are the new guns
Your password is a gun. It can’t shoot but at least the government treats it like a gun. In the UK, they made it a crime to refuse to give up your password to the government. The US long considered encryption an armament. It means encryption has military uses like weapons, infra-red goggles, plutonium, and armoured cars. When the government forces you to give up your password, it can read your data. Then you can’t hide anything from the government. It can get what it wants by demanding your password. In the UK, you can go to prison for years if you say no. In this information age, there is a real public interest in giving the government electronic investigation powers. But the UK is doing it the wrong way. They breach your right not only to privacy but also to due process. If gun rights didn’t sound so silly today, I would call the encryption rights the new gun rights.
The UK government recently disclosed that two people had been convicted for refusing to give up their encryption keys. There is no word on the sentence, but the prison term for this offence can stretch to five years. The UK government has had a power to take passwords by force since October 2007. This is how it works. If the government believes it needs your password for national security, crime prevention, or for economic well-being of the UK, it can give you a section 49 notice, named after the authorizing section of the Regulation of Investigatory Powers Act. A permission of the court is not necessary for this notice. You have only “reasonable” time to comply. After that, prosecutors can charge you with a criminal offence if you “knowingly” fail to give up the password.
Don’t say you have nothing to hide because you didn’t do anything wrong. There is a good reason to hide anything you want and still be a good citizen. Governments consist of people, even democratic governments. No matter how much you feel your government represents you, there are two ways in which a government can go rogue. First, you stop being in the majority. Second, a government official figures the majority won’t notice or will forgive him for abusing only you. That’s why many modern democratic countries enshrine human rights in their constitutional law: the US, Canada, and the EU, for example. Our Charter of Rights and Freedoms lets you ask the courts for protection from rogue government officials no matter what the majority thinks. The Canadian Constitution is a curb on both the government and the will of the majority. It presumes that both of them can do bad things. No one is a saint.
There are two ways to protect yourself from the government’s or the majority’s abuse. One is the constitutional law. The other one is physical. Many, many years ago gun ownership was such a physical barrier to government abuse. In the 18th century, it was reasonable to think that if men had guns, the government would not abuse them for fear of an armed response. Today it doesn’t make sense, of course, because no armed band of neighbourhood dads will be a match for the modern state’s professional military machine. But things we want to protect with physical barriers from governments gone astray are different today. It’s not land, or crops, or not even our physical liberty or security (courts do a good job protecting those two from abuse, and if a day comes when they can’t, a higher being will be our only hope).
What we more and more often want to protect today is computer data. Our lives are online or on the hard drive. Emails, records of every website we go to, diaries, mad or creepy thoughts we share with the computer screen, political manifestos, ideas, inventions, art: it’s really anything that can change the world in a perfectly legal way but an official may want to censor, delete or use in some other way to harass you, charge you, or declare that you don’t look like your passport picture when you go abroad. Do we live in a dictatorship? Of course not. Does our government do things like that routinely? No, no, and no. Does it looks like it wants to? Not really. But like the Charter presumes that the government has the capacity for evil, every citizen must have a right to presume the same thing and to build impenetrable walls around his private life. Gun lovers in a certain country south of the border got a wrong target in their sights. They cling to the wrong tools. Guns are outdated, good-for-nothing protection of human rights. Passwords are the new guns.
The UK law wants to take your passwords from you. And like many things in the computer age, passwords are tricky. You can’t rip them from the owner’s arms and break them into pieces. You can’t even know for sure who has them or who the owner of the data they protect is. That’s a huge problem with the UK law. To overcome this problem, the law must make presumptions. First, it must presume that whoever has the hardware, owns the data on it. Unfair. Plug your computer and lots of stuff will land on your hard drive in the first five minutes without your knowledge. Second, the law must assume that whoever has the encrypted data, knows the password. Don’t ever forget passwords that the government wants. It’s may be a criminal offence in the UK. Finally and most scarily, the law must presume that every chunk of random data is encrypted. Without a password, there is no way to tell an encrypted Word document from a piece of an image file. Encryption works by making ordered data appear random. Sadly, much legitimate, unencrypted data on your hard drive looks exactly like that. Experts can even encrypt text by turning it into a jpeg of a cat.
There is a very thin line between enforcing the UK password law and letting cops wade through arbitrary computers under the cover of the today’s hottest flavour of the public interest. There are just too many legal fictions in this criminal offence. For this reason, I think Canadian courts would not let it stand if our Parliament passed a similar law. It’s just not necessary to force people to give up passwords to defend the absolutely legitimate public interest of safety or national security. The government can do its job without breaching human rights this much. Forcing people to surrender passwords will not minimally impair their Charter rights. The offence in the UK law is also too vague because any file with random data is potentially encrypted and subject to investigation. Giving up passwords may also be self-incriminating. No one should be punished for refusing to testify against themselves.
Let’s not kid ourselves. More and more criminals will encrypt the data used to commit crimes. But the way computer networks work makes it easy for that data to end up on an ordinary citizen’s computer. The government shouldn’t have powers to force us to give up passwords to any random heap of data that it believes to be connected to criminal activity. Passwords to our email or computer accounts will not be safe from such investigations either. Spammers bombard our computers with billions of attachments every year. There is a good chance spammers’ networks or computers are implicated in crime. That’s a real connection to our pretty Macs or drab PCs humming in our living rooms or bedrooms. And little can stop the police from suspecting that you know the password. This scenario doesn’t have to be common to cause alarm. It should cause alarm because of its potential for abuse. Making it an offence to refuse to give passwords justifies police involvement that can go beyond reasonable limits. That’s too much for our civil liberties, even in the name of fighting crime.
The UK password law is harsh and unreasonable. It can make too many law-abiding citizens targets of police interest. It will make them potential criminals when they refuse to take down barriers between their private space and the government. Someone said we increasingly lived online. If we take our affairs to the electronic realms, let’s make sure we take our civil liberties there too, even if we have nothing to hide.
What country has the strongest civil liberties?
There is a lively discussion on Slashdot about which countries are best for civil liberties and privacy. It all started when someone from the UK said s/he was unhappy with growing restrictions and wanted to emigrate.
It struck me how little Canada came up in the discussion. Why? We have the Charter; reasonable, independent, strong courts; decent privacy laws; evidence of the judiciary keeping the government on its toes. I guess the world just doesn’t know Canada that well.
Do you have other ideas why Canada is not mentioned? Any other countries you think are better?
