We have become a society focused on rights but we are amnesiacs when it comes to our responsibilities. We do acknowledge the idea of responsibility very well. Only it is the government’s responsibility . . . to ensure that our rights are protected of course.
Civic responsibility is on the wane. We can barely convince two-thirds of our fellow citizens to take an hour every four years to cast a ballot.
Other rates of political participation are even lower. We Canadians are often so smug in asserting our moral superiority over our American neighbours, but we should be looking with envy at the current presidential primary season - the longest ever - and how it has excited and energized Americans and spurred an increase in political participation that will likely translate into higher voting rates in November of this year.
A recent non-constitutional case at the Supreme Court brought home some of the issues surrounding the notion of constitutional responsibility. In Tele-Mobile Co. v. Ontario, 2008 SCC 12, Telus Mobility sought compensation for the costs of complying with third-party production orders under the Criminal Code.
In an unanimous decision written by Justice Rosalie Abella, the court dismissed Telus’ arguments that the police should have to compensate them for complying with the production orders. The decision rests on the idea of civic responsibility best captured by the term a friend of mine used to describe the theory of the case: “corporate jury duty.”
Telus unsuccessfully attempted to distinguish itself from other unpaid or under-compensated participants in the criminal justice system, like jurors and witnesses, on the basis that it is a repeat player in assisting law enforcement.
Telus has a fraud and wireless security management unit that responds to requests from law enforcement agencies, and in 2004 it responded to over 2,800 warrants. Telus argued that it should be treated more like judges or expert witnesses who are compensated for their participation in the criminal justice system.
This argument did not fly with any of the 10 judges who ruled in the case at the Supreme Court or in the court below.
On the burdens imposed on witnesses in criminal trials, the Supreme Court invoked the still-popular John Henry Wigmore to the effect that, “It may be a sacrifice of time and labour, and thus of ease, of profits, of livelihood. This contribution is not to be regarded as a gratuity or a courtesy, or an ill-required favour.
It is a duty not to be grudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of organized and civilized communities, and become a hermit.”
The court noted that everyone has a duty to assist in the administration of justice. That is, we all have a responsibility to preserve our constitution. When it came to dollars and cents, Telus had a very weak case. The evidence was that the annual estimated cost to Telus of complying with third-party production orders was $662,000. The motions judge translated this into percentage numbers to put this figure in perspective.
The numbers were not kind to Telus. The figure amounted to 0.023 per cent of Telus Mobility’s operating revenue for 2004 and 0.029 per cent of its operating expenses for the same year. Other numbers were worse.
Then the Crown pointed out that these numbers are the equivalent of a person earning $100,000 a year having to spend up to $58 to comply with jury duty. I suspect that the case was likely lost for Telus at this point.
For those wondering about jury duty, in Ontario we take the idea of this civic duty perhaps a little too literally.
We do not compensate jurors unless they serve more than 10 days, at which point we pay them $40 per day, less than what McDonald’s can legally pay a teenager. If they are on a jury trial for 50 days or more, jurors’ stipends increase to $100 per day.
We the taxpayers do not pay for childcare expenses or for transportation expenses unless the juror is commuting from out of town. It is little wonder that Telus compared so unfavorably to our chronically underpaid jurors.
However, there is a flip side to imposing “corporate jury duty” on the Teluses of our society. Imposing all of the responsibility on Telus without any restraint on the party ordering the third-party production order (usually the police) creates a classic free-rider problem.
The police have no incentive to be efficient or strategic when another party is bearing the cost in time and money of such production. From a civil liberties perspective, do we literally want to give the police a blank cheque to order production of whatever records they want?
They could probably use a little more responsibility themselves. The jury should still be out on this question, but after the Telus case it is now left to Parliament to revisit this issue, and that is unlikely in the near future. In the meantime, Telus, other telecommunications providers, and financial institutions are now shouldered with constitutional responsibilities and will now have to report for “corporate jury duty” along with many ordinary citizens.
Adam Dodek is a visiting scholar at Osgoode Hall Law School. He can be reached at email@example.com