This post is a slightly expanded version of an editorial that appeared in the Globe and Mail online addition, 5 December 2014.
A remarkable moment in popular constitutionalism took place in Alberta this week. A private member’s bill which, following similar initiatives in Ontario and Manitoba, would have compelled schools and school boards to allow “gay-straight alliance” groups, turned into a political firestorm for Jim Prentice and his Progressive Conservative government. Introducing their own more muted legislation in response produced several tense legislative debates, dissension in party ranks, accusations of discrimination, and thousands of outraged blogs, editorials, facebook posts, and tweets from across the province. After suddenly pulling the bill from the legislature, the new premier claimed that a “pause” was necessary in order to allow the government to “listen to Albertans” and “get it right”. Alberta’s government entered the week well aware of the ability of courts to constrain government policy under the Canadian Charter of Rights and Freedoms. They ended the week all too aware of the power of rights in the hands of everyday people.
A large part of the controversy stemmed from the government’s suggestion that the rights at stake were complicated and conflicting rather than clear and one-sided. The government’s proposed legislation would have added sexual orientation to the prohibited grounds of discrimination in the Alberta Bill of Rights, but also added “the right of parents to make informed decisions respecting the education of their children” to the list of entrenched “human rights and fundamental freedoms” within Alberta. The legal impact of such parental rights is unclear (the phrase is not common among other rights instruments), but probably not particularly extensive since the Alberta Bill of Rights provides only that other Alberta legislation be “construed and applied as not to abrogate, abridge or infringe” any of the listed rights or freedoms. It is difficult to imagine government legislation that infringes with the ability of parents to make informed decisions in the education context. The addition of sexual orientation to the Alberta Bill of Rights was a purely symbolic gesture. Like its federal counterpart, The Canadian Bill of Rights, the Alberta Bill of Rights has largely been overtaken by the Canadian Charter of Rights and Freedoms, which, of course, applies broadly to all provincial legislation and government action. The addition of sexual orientation adds nothing substantive to equality rights protection that the Charter does not already provide, with the exception of “the right to enjoy property”. By contrast, the judicial addition of sexual orientation to Alberta’s human rights legislation in Vriend had extensive ramifications since human rights legislation governs private sphere activity not captured by the Charter.
As for the gay straight alliances that sparked the debate in the first place, the legislation gave the ultimate decision of whether to allow such groups to the supervising school board, whose elected trustees, the government emphasized, have rights to autonomy. Finally, Prentice reminded that Alberta’s Catholic schools enjoy special constitutional protection of their “rights and privileges … of religious instruction” under the province’s foundational constitutional document, the Alberta Act. LGBT youth certainly had rights, the government acknowledged, but so did parents, school boards, and the faith-based public school system. “Rights are difficult,” Prentice noted in his press conference, “and the conflict between competing rights is difficult for all of us.”
Throughout, critics remained unconvinced, pronouncing human rights compromises, especially in the context of a vulnerable minority, regressive and cowardly. Days after hoisting the Grey Cup, CFL star Jon Cornish characterized the government’s legislation as “unacceptable”. A normally chipper morning television host in Edmonton could barely contain his agitated criticism of the bill. Others raised the spectre of the Jim Crow American south and the noxious racism of the separate but equal doctrine. “We didn’t give women half a vote,” Conservative backbencher and former cabinet minister Thomas Lukaszuk pointed out. In response to Prentice’s comment that “rights are never absolute,” Rick Mercer tweeted, “maybe that should be on the licence plate.” All of which was retweeted, reposted, and quoted online. The power and force of the objections framed in the language of human rights captured the public’s attention and, ultimately, the government’s.
What is the way forward in a dilemma in which the government sees rights colliding at every turn? Prentice is certainly right that rights are not absolute. The opening section of the Charter guarantees rights and freedoms and subjects them to reasonable limitations. The concept of limits may not make for a good licence plate slogan, but society would be ungovernable without it. And Prentice is right too that freedom of religion means the freedom to believe in that which others may find objectionable.
The key to a just resolution will be to acknowledge the multiplicity of rights at issue, while at the same time recognizing that parallel rights need not conflict. The principle of reconciling rather than placing rights in compromise is one the under-appreciated foundations of the Supreme Court of Canada’s Charter jurisprudence. Most seemingly intractable rights disputes are better resolved by carefully defining the core and limiting features of the rights themselves, of imagining a co-existence rather than battle of competing rights. “[P]otential conflict” the Supreme Court held in Trinity Western University v. College of Teachers, 2001 SCC 31 at para 29, “should be resolved through the proper delineation of the rights and values involved. In essence, properly defining the scope of the rights avoids a conflict in this case.” In abstract rights often appear to conflict, but in context, with due regard to fulfilling the purpose of the right in the particular fact scenario, sensible lines of demarcation between rights become visible (see also R. v. N.S., 2012 SCC 72 at paras. 31, 32).
In its legislative pause, and away from the character constraints of a twitter debate, the government should not abandon its attentiveness to the breadth of rights at issue, but should look for the many ways in which those rights can co-exist without real conflict. School boards can function, catholic schools can religiously educate, parents can make informed decisions and students can voluntaryform inclusive equality-seeking groups. That is not a world in which rights are absolute, it is a world in which rights can be mutually respected.
In writing about the future of the constitution's notwithstanding clause, John Whyte observes that “sometimes constitutions are made in the streets.” In Alberta, this week, in a debate about rights that raged across the internet, it also appears that constitutional law can be made in tweets.
Sometimes all it takes to alter the course of history is one pissed-off person. Supap Kirtsaeng wasn’t a crusader or lone nut; he was just an eBay trader who got backed into a legal corner and refused to give up.
To help pay for grad school at USC, he sold textbooks online—legitimate copies that he’d purchased overseas. But academic publishing behemoth John Wiley & Sons sued Supap, claiming that his trade in Wiley’s foreign-market textbooks constituted copyright infringement.
The implications were enormous. If publishers had the right to control resale of books that they printed and sold overseas, then it stood to reason that manufacturers could restrain trade in countless products—especially tech goods, most of which are made in Asia and contain copyrightable elements such as embedded software.
Intent on setting a precedent, Wiley slammed Supap with a $600,000 jury verdict and all but buried him on appeal. But the grad student hung tough, arguing that as lawful owner of the books he had the right to resell them. Eventually he convinced the US Supreme Court to grant review.
With all the goings on in Ferguson, I will leave the commentary and observations to others. Here, however, is an old interview with the great Thurgood Marshall, where we see some interesting aspects of his nuanced views:
... The Kansas Supreme Court recently voted unanimously to disbar Hawver for what the court called “inexplicable incompetence.” If you were wondering what exactly inexplicable incompetence looks like in the legal profession, Hawver is your man.
Where to start? Try this: During a 2005 murder trial, Hawver described his client—Phillip Cheatham—to the jury as “a professional drug dealer” and a “shooter of people.” Hawver’s unconventional legal reasoning only went downhill from there. sss
Earlier this year, my colleague David Percy and I published A Guide to Property Rights in Alberta, which we wrote with the generous support of the Alberta Land Institute. So it is no surprise that I was intrigued to learn that this government's first piece of legislation, Bill 1, which was introduced on Monday, is called "Respecting Property Rights Act". It begins with the following words:
WHEREAS private ownership of land is a fundamental element of Parliamentary democracy in Alberta;
WHEREAS the Alberta Bill of Rights recognizes and declares the right of the individual to the enjoyment of property and the right not to be deprived thereof except by due process of law;
WHEREAS the Government is committed to consulting with Albertans on legislation that impacts private property ownership;
WHEREAS the Land Assembly Project Area Act was enacted by the Legislature in 2009 and was amended in 2011 but has not been proclaimed in force; and
WHEREAS the repeal of the Land Assembly Project Area Act reaffirms the government’s commitment to respect individual property rights;
Bill 1 has a single section, and it repeals the Land Assembly Project Area Act. LAPAA was originally proposed in 2009. It gave the government the power to halt all uses and freeze any development of land eyed by the government for large infrastructure projects, such as transportation and utility corridors and water reservoirs. LAPAA was meant to give the government time to plan complex projects, preventing private owners from making investment and development decisions in the interim that were inconsistent with the government's designs.
LAPAA proved to be unpopular with landowners, especially rural landowners, whose lands could be declared part of a "project area". The original Act was problematic for several reasons, but the most serious complaints were that it allowed the government to freeze land indefinitely and without compensation. LAPAA made it clear that the only compensation available to an owner whose land is declared part of a project area is what the owner would receive when the land is purchased by the government or formally expropriated in accordance with the Expropriation Act. This meant that if the land was frozen prior to the title to it ultimately transferring to the Crown, its owner would not be compensated for the loss of use and enjoyment in the interim period, even if very long. Worse still, if the land was frozen, and the government subsequently chose not to proceed with the project, then the owner would get no compensation whatsoever.
To address these and other concerns, the government amended LAPAA in 2011. Some of the amendments included a clearer and narrower definition of the projects that fall under the Act, including time limits for the anticipated completion of the project (but not necessarily time limits on the actual freeze), and a lease-back option until the commencement of the project for owners who consent to sell their land to the government. More importantly, the amendments gave any registered owner of land within a project area the right to compel at any time the Crown to acquire the land by purchase or expropriation.
LAPAA was never proclaimed and never came into force. The government now proposes to repeal it altogether. Land assembly for public projects will still be possible, but only through the usual channels of negotiation or expropriation.
Obviously, the enactment and future repeal of the Land Assembly Project Area Act affects directly only a small percentage of Albertans, so the real significance of Bill 1 is arguably the decision to bring forward legislation "Respecting Property Rights" as the first order of business. The preamble to Bill 1 (above) is particularly revealing. Two comments may be made in respect of the first two paragraphs of the preamble, which show how deep the disagreements and misunderstandings about property rights run in this province. First, the power of government in a democratic society to assemble land for public projects, including by compulsory acquisition from private owners, is fairly uncontroversial. Moreover, the Supreme Court has held (e.g., here) that "There is nothing inherently wrong with a development freeze". LAPAA may raise concerns about process or about the equitable distribution of the burdens of public projects, but the preamble should not to be read as indicating there was anything undemocratic about the legislation which is now proposed to be repealed. Second, the Alberta Bill of Rights onlyprotects against arbitrary deprivations and ensures that public authorities comply with legislative requirements. Whatever protections it affords are, as Bruce Ziff writes in his textbook (6th ed. at p. 88) "overriden by legislative edict". In other words, nothing in LAPAA contravenes the Alberta Bill of Rights in any way.
In the mean time, the government has indicated that Bill 1 is only the beginning of a process of re-evaluation of recent planning legislation – the most critical of which will likely be the Alberta Land Stewardship Act(ALSA). It will be interesting.
I think I would like to jump off a cliff and take a chance that another dude in a parachute will dock on my back and use me like a magic carpet. No, I am not speaking in code. This is what two daredevils actually did:
There is the old joke about a lawyer who dies and goes to the Pearly Gates. St. Peter says to him, “you only look about 45 years old.” “Yes,” says the lawyer, “I just turned 45.” “But our records say that you are 94 years old.” “Oh,” responded the lawyer, “you must have been looking at my billing records.” Another joke tells of the client who questioned the lawyer about part of his bill. “What is this $100 charge for?” asked the client. The lawyer replied, “That’s when I was walking downtown. I saw you on the other side of the street, crossed over to say hello, and found out that it wasn’t you.” -
If you have time, the story of the events are narrated here in Part 1 and then Part 2. If there is a silver lining in the story, it is that Texas now has a Stinchcombe type disclosure law. But of course, that is only one state.
In Bhasin v Hrynew (2014 SCC 71), the Supreme Court of Canada charted a new course for Canadian common law contracts, stopping just short of holding in favour of a general duty of good faith. Instead, Justice Cromwell, writing for a unanimous panel, took “two incremental steps” in the development of the common law (para 33): first, he acknowledged “good faith contractual performance” as “a general organizing principle of the common law of contract”; second, he recognized as a “manifestation” of this principle, a duty of honest performance. Throughout his reasons, Justice Cromwell cites my colleague, Professor Shannon O’Byrne, one of the leading Canadian contract law scholars whose academic articles helped persuade the Court to reject the common law’s traditional wariness of contractual duties of good faith. As Justice Cromwell notes, this decision helps to bring the Canadian common law in line with that of our largest trading partner, the US, as well as the civil law of Quebec (para 41).
Very briefly, the plaintiff, Mr. Bhasin, claimed that the defendant Canadian American Financial Corp. (“Can-Am”) had been dishonest with him regarding its intentions to renew the parties’ agreement (para 15). The trial judge found that Can-Am’s dishonesty prevented Mr. Bhasin from acting to retain the value of the business he had built up during his contractual relationship with Can-Am. Justice Moen held it was an implied term of their agreement that decisions regarding renewal of the contract would be made in good faith, and that Can-Am’s dishonesty breached the contract.
The Alberta Court of Appeal reversed the trial judge’s decision on the basis that Justice Moen had “erred by implying a term of good faith in the context of an unambiguous contract containing an entire agreement clause” (paras 16 and 28). The Supreme Court held that the duty of honest performance was one implied by law, and so not precluded by a general entire agreement clause (paras 74-75). Although Justice Cromwell did not rule out the possibility that parties could preclude this duty by clear wording in a contract (paras 77-78), he thought it unlikely that parties would agree that they could be dishonest with each other (para 81). In other words, although the duty of honest performance exists independently of the intentions of the parties, it is one that is unlikely to be inconsistent with the parties’ intentions in most cases. The duty “means simply that the parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract.” (para 73) It does not impose a positive duty of disclosure (see paras 86-87).
Apart from setting out the duty of honest performance, the Court did not elaborate on other specific contractual duties that might flow from the general principle of good faith contractual performance. Furthermore, although the facts in Bhasin involved a renewal clause, the case does not deal with the question of a contractual duty to negotiate in good faith. No doubt much will be written analysing Bhasin and its implications in the weeks to come and going forward, as trial judges seek to balance the principle of good faith contractual performance with the other organizing principle of contract law acknowledged by the Supreme Court in Bhasin (para 70), freedom of contract.
One day this past fall, while I was still unemployed, I went to buy apples at the farmer’s market in my neighborhood and realized, while staring into the dark abyss that is my bank account, that those $6 worth of apples would cost me a third of my net worth. I’d been toying with the idea of selling the ring since our separation a year earlier, but now it had become a necessity.
I called my former downstairs neighbor, Michael, who buys and sells diamonds for a living. “Bring it over,” he said. When I did, he held the stone up to the light and told me he could give me around $1800 for it, give or take, if he could match me with a buyer.
“What?” I was pretty sure my ex had bought the stone wholesale for around $3,000.00 back in 1992, when we got engaged, from a diamond merchant friend of the family’s who later leapt to his death. I add in this last detail not because it has anything to do with the story, but because it’s just a weird detail that gave me one of those shivery bad omen feelings—which turned out to be prescient—when I heard it. (Did the merchant have debts? Depression? Those darker issues went with him to his grave.) ...
But seriously, how could a diamond have depreciated by nearly half over the course of 21 years? I didn’t get it. What about “Diamonds are forever”? Does that just mean you have to hold onto them forever because they’re worthless? ddd
Tired of hearing claims of media bias? Well, get used to it. The latest about the architect of Obamacare bragging about how the stupidity of voters for the passage of the ACA has re-opened the discussion about media bias: