Questo saggio sostiene che le “leggi provvedimento” creano lo stesso problema legale delle leggi che tentano di concedere “illimitata discrezionalità” nel processo decisionale. L’idea di common law di “parlare della razionalità al potere” viene utilizzata per dimostrare, utilizzando la giurisprudenza canadese, come le leggi che concedono “discrezionalità illimitata” siano state effettivamente limitate e poste sotto il controllo legale. La logica del “parlare della razionalità al potere” è la logica dell’eguaglianza. Questa stessa tecnica e logica può essere applicata per controllare le “leggi provvdimento”. Il saggio sottolinea poi che mentre il “parlare della razionalità al potere” può e dovrebbe essere utilizzato anche nel diritto costituzionale canadese (in opposizione al common law) questo è, purtroppo, un passo ancora da compiere.

Parole chiave: Leggi provedimento - discrezionalità - uguaglianza – Canada.

SOMMARIO:

1. Introduction – A Canadian in Italy, “leggi provvedimento”, and speaking rationality to power - 2. Basic Truths about the “rule of law” under the common law – as best understood in Canada - 3. The link between Specific Laws and “Unlimited” Discretion - 4. The Canadian common law of “Unlimited discretion” – the cases of Roncarelli v Duplessis and Smith & Rhuland - 5. Sham General (labour) laws – The Michelin case - 6. The Canadian common law of “specific laws” and “specific laws masquerading as general laws” - 7. The Canadian constitutional law of specific labour laws. (Or, Canadian constitutional law lacks the common law’s courage – at least thus far) - 8. Summing Up - NOTE -

1. Introduction – A Canadian in Italy, “leggi provvedimento”, and speaking rationality to power

The labor law questions in which I am interested are questions such as: “what is labour law for?”, “what is international labour law for?”, “why is labour law a legal subject?”, “how is labour law a legal subject?”, “what is the moral justification for labour law?”, and, “do we need a new account of labour law?” These are questions which labour lawyers everywhere face. They are “basic”, but not “merely” theoretical – their answers decide concrete cases. How we think about these legal issues has real, tangible outcomes in the lives of workers and employers. The thoughts in this paper were developed for (virtual) preparation for the Symposium on: “The ‘leggi provvedimento’ (private, special, and local laws) and labour law” in Parma, Italy, on September 24th, 2021. One of my favourite opening lines to any novel is “The past is a foreign country – they do things differently there” [1]. While Italy is certainly a foreign country for me, there is much that I have learned, as a Canadian, from my experience sharing thoughts with my Italian counterparts. Writing this short paper has provided, again, this wonderful sort of learning experience. As a Canadian, I understand ‘leggi provvedimento’ as an Italian term for laws which are specific or “targeted”. Rather than having a broad, general application, these laws are designed to address specific scenarios and/or subjects. Here is what I think I learned in this recent visit, as a foreigner, to Italy and through my encounter with this legal idea. The issue of “leggi provvedimento” has opened a door for me to see how my prior thinking about what I call “speaking rationality to power”, and my admiration of several Canadian cases, Roncarelli [2] and Smith & Rhuland [3], can be seen as another part of the case I have been making for some time against the Supreme Court of Canada’s current approach to constitutional labour law [4]. The invitation to think about “leggi provvedimento” led me to see the link between specific laws, on the one hand, and unlimited discretion on the other. Until now, my thinking had simply been about the latter. Once that link was established, I saw that I had a more powerful version of my critique of the Supreme Court of Canada’s approach to constitutional [continua ..]

2. Basic Truths about the “rule of law” under the common law – as best understood in Canada

In his 2001 book Constitutional Justice [5] TRS Allan offered an account of the “rule of law” in which he claims that it is a “principle of constitutionalism”, rather than simply a procedural ideal. In essence, he argues, the rule of law carries with it a substantive commitment to the ideal of equality. In his words: the procedural ideal of ‘natural justice’ or due process, if it is to provide real protection against arbitrary power, must be accompanied by the equally fundamental ideal of equality… The latter ideal imposes substantive constraints on governmental power, ensuring that all citizens are treated alike in certain crucial respects [6]. This view suggests a very basic but fundamental point: equality is at the core of legality. As I explain below, there is support for this contention in the Canadian jurisprudence. A half century before Allan, the Americans Tussman and tenBroeck also put this point succinctly in their discussion of the due process and equal protection clauses of the 14th Amendment to the Constitution of the United States: «But early in its career, the equal protection clause received a formulation which strongly suggested that it was to be more than a demand for fair or equal enforcement of laws; it was to express the demand that the law itself be “equal.” In Yick Wo v. Hopkins, Mr. Justice Matthews said that “The equal protection of the laws is a pledge of the protection of equal laws.” … It is a statement that makes it abundantly clear that the quality of legislation as well as the quality of administration comes within the purview of the clause» [7] [emphasis added]. This discussion is part of a long and still important conversation between adherents of the school of “legal positivism” on the one side and others who regard law as having an “inner morality” (to use Lon Fuller’s phrasing) [8], on the other. In this project, scholars such as TRS Allan and my colleague at Toronto, David Dyzenhaus, are in the intellectual vanguard. Their great insight that the rule of law is a “principle of constitutionalism” conveys that it is part of the fundamental arrangement between the governed and their government. This is a point which many common law theorists – and public lawyers – miss because they are in the grips of an emaciated view of law driven by a commitment to the tenets [continua ..]

3. The link between Specific Laws and “Unlimited” Discretion

The basic idea which I seek to lay bare in this paper is a simple one: a law granting the executive an unlimited discretion as to its application (to whom it applies) is simply another way of achieving the same result as a specific law aimed at or “targeting” specific person. Such a law, I argue, is “legge prove­dimento” in disguise. Instead of legislating for, or against, a certain individual, firm, or activity, a general power is granted that enables the government to achieve the same result as a specific legislative act, but through a general grant of administrative discretion. For example, if a law grants a power to the government to grant a licence to carry on an activity – say, driving a car, or selling alcohol in a restaurant, or practicing law – it can, instead of stipulating that “Brian Langille shall never be granted a driving licence”, simply stipulate that the licence be issued in the “discretion” of a government official, or administrative agency, or minister in the government of the day. This extremely broad grant of discretion then opens the door to selective, arbitrary, and perhaps corrupt decisions which offend the rule of law, such as denying Brian Langille a driving licence. Thus, the effect of a specific law and of an unlimited grant of discretion can be identical. This idea that specific laws and unlimited discretion are “two sides of the same coin” is, I think, an important one, at least in Canada. This is because we have a somewhat limited jurisprudence about “specific laws” being struck down as contrary to fundamental rule of law principles. We do, however, have a rich tradition of judicial control of exercises of state power via official discretion (exercises which do not meet the test of equality – i.e. the existence of valid reasons for the exercise of the discretion). Thus, the simple idea that this paper posits is that this set of cases at common law which concern discretion offer the key to understanding the problem of “specific laws”. They also help expose a fatal flaw in the Supreme Court of Canada’s thinking about the constitutional idea of equality which I think is now the key to thinking about specific labour laws in Canada.

4. The Canadian common law of “Unlimited discretion” – the cases of Roncarelli v Duplessis and Smith & Rhuland

All Canadian lawyers – as well as many other Canadians – are likely familiar with the facts of Roncarelli v Duplessis. In Roncarelli, the premier of the province of Quebec, M. Duplessis, ordered a permanent revocation of Roncarelli’s restaurant liquor licence in order to punish Roncarelli for undertaking a perfectly legal and political activity: providing bail for Jehovah Witnesses arrested during a period of “bitter controversy” between them and Roman Catholics in Quebec, and during a campaign by the Catholic Church to end their proselytizing [11]. The Premier, in revoking the liquor licence, relied upon legislation which provided that the government “may cancel any permit at its discretion.” [12] In striking down and giving remedy for this exercise of “discretion” by the Premier, and in one of the most famous of Canadian legal judgements of all time, Justice Rand – regarded by many as Canada’s greatest judge, wrote as follows: A decision to deny or cancel such a privilege lies within the “discretion” of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration. In public regulation of this sort there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. “Discretion” necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislature cannot be so distorted. To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred [13]. [Emphasis added]. In a [continua ..]

5. Sham General (labour) laws – The Michelin case

In furthering my point, I will now discuss one of the most egregious examples in Canadian legal (and labour law) history of specific laws masquerading as a general law – the Michelin Bill. This is probably the most famous “specific (negative) labour law” in Canadian labour law. The significance of the case can be seen in the fact that a generally worded law, amending a law of general application, would come to be known by the name of a single corporation. The facts are rather simple – but some appreciation of some of the peculiar details of North American (Wagner Act Model) labour relations also helps. Here is the basic story. It is a story of a multinational firm threatening to disinvest if the local government did not amend labour legislation to its advantage. Michelin also promised more investment (in the form of another manufacturing plant) if the government complied. Specifically, it demanded that the government block a unionization drive at one of its two plants. The government did so by passing what is known as the Michelin Bill (or Michelin Amendment). This was a generally worded law, but one which was more or less openly admitted being aimed at Michelin. That is, it was a specific law, and everyone knew it. But it was dressed up as a general law. From the perspective 2021 we would likely say this was a classic case of social dumping, a race to the bottom in labour standards, a demonstration of the power of mobile capital, a clear demonstration for the need to block such regulatory arbitrage and competition, proof of the need for international standards prohibiting such behavior, and all the rest. Except that none of that now familiar language was familiar at the time. “Globalization” was not yet a word. “Races to the bottom” were the concern of game theorists, not labour lawyers. And so on. Michelin had built two plants in Nova Scotia employing several thousand workers. This represented about 10% of the province’s manufacturing capacity. Neither plant was unionized. The International Rubber Workers Union began a unionization drive at one of the two plants. At the time, it was clear law that the union, if it could establish majority support at that one plant, would be “certified” by the labour relations board to represent the employees at that plant. This would place the employer under a legal duty to bargain with the union. The union organized on that legally clear “plant [continua ..]

6. The Canadian common law of “specific laws” and “specific laws masquerading as general laws”

The questions which the Michelin Bill forces us to come reckon with are the following: first, “is there an unwritten common law rule against such specific laws?” Second, “what does the common law have to say about laws aimed at determining one case, but which employ a strategy of altering the general rules as the vehicle to determine the outcome of a specific case?”. These questions retain an important common law dimension, which I will briefly provide some background on, before addressing this paper’s main quarry, the constitutional dimension. The basic point is as follows: somewhat amazingly, our dedication to the idea of equality is more powerful at common law than in our constitutional law, and also stronger under our “unwritten constitution” than under our written constitution. This is the point which I now see and would not have seen but for the invitation to think about “leggi prov­vedimento”. Historically, the common law held specific laws to be illegal. The origins of this lie in the law of “Bills of Attainder” which were a more common phenomenon in the very early common law world in England. Such Bills were “legislative acts which convicted a person of an offence” [33]. They are illegal at common law because they offend basic legal principles in a number of ways – they are specific, they deny due process, and they violate the principle of separation of powers (with the legislature usurping the judicial function of applying the law to specific cases). So too are “ad hominen” laws which provide a trial but single out a person for prosecution not under the general law. As it was put quite recently by the Supreme Court of the United Kingdom in the case of Ferguson v AG Trinidad: «The objection to a bill of attainder is the same as the objection to any exercise by the legislature of an inherently judicial function. It does not have the essential attribute of law, which is its generality of application. The first requisite of a law, wrote Blackstone (Commentaries, Introduction, Section II), is that “... it is a rule: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this [continua ..]

7. The Canadian constitutional law of specific labour laws. (Or, Canadian constitutional law lacks the common law’s courage – at least thus far)

I now return to what is, under today’s law, the constitutional dimension of cases such as the Michelin Bill – labour law cases involving specific groups of workers sometimes in very specific cases – where constitutional rights and freedoms can now be invoked in Canada to challenge such selective treatment. We now have in Canada another, constitutional, way of thinking about our issues of specific labour laws. The tragedy – or at least the irony – is that the Supreme Court of Canada has seems oblivious to the common law having already been there and having shown the way forward [38]. There is a large point I am after here at which the title of this section hints. The idea we need to use to sort out these cases is the idea that the common law has long brought to bear on the issue of specific laws and general discretion – the logic of equality. The idea of speaking rationality to power. This should have been an easy translation from common to constitutional law because there is now an express constitutional guarantee of equality before the law. S. 15 of the Charter reads: «15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability». The problem flows from the following sad truth: Canadian constitution law has witnessed a “reading down” of s. 15 from an equality to a “non-discrimi­nation” guarantee. As discussed above, this means that s. 15 is now understood by Canadian courts as if it were a mere Human Rights Code protection against only a list of prohibited reasons, rather than also containing a much stronger demand for relevant reasons where there is differentiation. This distinction is the key, as we have seen, to the idea of equality. Equality is not a command that we must treat everyone the same, but rather that we need a good reason for differential treatment. The irony, or tragedy, lies in the fact that common law judges – such as Rand, in Roncarelli and Smith & Rhuland – fearlessly articulated and deployed this idea of equality at common law against unlimited discretion and against specific laws (Bills of Attainder, etc.) as part of the unwritten constitution. In stark contrast, our current court refuses to do so even [continua ..]

8. Summing Up

The points I am after, all spurred by the invitation to be with you today, are first, that this constitutional law is all a mistake. The logic we need here is the logic of equality. Second, that this invitation “to” Italy has let me see for the first time is that this mistake is even larger that I had been able to see before. The issue of “leggi provvedimento” has clarified my thinking about “speaking rationality to power. Third, I now see those cases such as Roncarelli and Smith & Rhuland, are part of the argument against the Supreme Court of Canada’s approach to constitutional labour law – and also part of the case in favour of the “equality approach”. Invoking the common law – seeing the link between specific laws and unlimited discretion, the connection to my equality critique of the current very weak versions of a right to bargain collectively and a right to strike – has been a breakthrough in my thinking. I owe the organizers a great deal for providing the opportunity to join these dots, make these links, and see a wider and better legal argument for my views.

NOTE

[1] L.P. Hartley, The Go-Between, Hamish Hamilton, London, 1953. [2] Roncarelli v. Duplessis, [1959] SCR 121 [Roncarelli]. [3] Smith & Rhuland Ltd. v. Nova Scotia, [1953] 2 SCR 95 [Smith & Rhuland]. [4] See B. Langille, Why are Canadian Judges Drafting Labour Codes – and Constitutionalizing the Wagner Act Model?, in Canadian Labour and Employment Law Journal, 2009-2010, 15, 101-128; Id., The Freedom of Association Mess: How we got into it and how we can get out of it, in McGill Law Journal, 2009, 54, 177-215, and Id., Can We Rely on the ILO?, in Canadian Labour and Employment Law Journal, 2007, 13, 363-390. [5] T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law, Oxford University Press, Oxford, 2001. [6] Ivi, Introduction, 1-2. [7] J. Tussman, J. ten Broeck, The Equal Protection of the Laws, in California Law Review, 1949, 3, vol. 37, 342. [8] L. Fuller, The Morality of Law, Yale University Press, New Haven, 1964. [9] Allan, supra, n. 2 at p. 1. [10] Dworkin, generally. See also B. Williams, The Idea of Equality, in Problems of the Self, Cambridge University Press, New York, 1973. [11] Roncarelli, supra, at 131-133. [12] Ivi at 139. [13] Ivi at 140. [14] Ivi at 141. [15] Ibidem. [16] Ibidem. [17] Ibidem. [18] Ibidem. [19] Ibidem. [20] Ivi at 141. [21] Smith & Rhuland, supra. There was a dissent – but on the basis of SRTP. [22] Ivi at 96. [23] Ivi at 97. [24] Ivi. at 96. [25] Smith & Rhuland is critical for Canadians – and it is important to see why. The most compelling and enduring of Rand J’s words must be kept in mind. The real victim here, the real freedom trampled on here, was not the political freedom of the union official – rather it was the freedom of association of the shipyard workers to freely choose their representatives. In one of the most powerful of statements ever uttered by a judge of the Supreme Court of Canada, Rand J wrote: «To treat that personal subjective taint as a ground for refusing certification is to evince a want of faith in the intelligence and loyalty of the membership of both the local and the federation. The dangers from the propagation of the communist dogmas lie essentially in the receptivity of the environment. The Canadian social order rests on the enlightened opinion and the reasonable satisfaction [continua ..]