Rule of Law theorists invariaby insist that legislation must be prospective ― that the law must be changed, if changed it must be, for the future only and not for the past. But a thoughtful opinion delivered last week by Justice MacDonnell of the Superior Court of Ontario shows that sometimes at least, things are more complicated, and Rule of Law values might actually counsel against applying the requirement of prospectivity too rigidly.
The decision in question is R. v. Pandurevic, 2013 ONSC 2978. It arose out of an application by an accused for a clarification on whether the instruction that would be given to the jury regarding the defence of self-defence that he intended to advance would be based on the self-defence provisions of the Criminal Code that prevailed at the time he allegedly committed his offence or on an amended provision that was enacted between the time of the alleged offence and that of the trial. It is worth noting that, unusually, it was the accused who was pushing for the new provision to be applied ― and thus to be given retroactive effect, in violation of the usual understanding of requirements of the Rule of Law, ― while the government was arguing for prospectivity.
Justice MacDonnell sided with the accused, holding that Parliament, even though it did not say it in so many words, must have intended the new self-defence provisions to be used in all trials after their coming into force, including where this meant retroactive application. Although courts normally presume Parliament to have no such intent, this presumption can be rebutted, and, said Justice MacDonnell, was rebutted in this case.
One reason for this holding was the fact that the old law was, as Justice MacDonnell put it, “the subject of uniformly withering criticism from law reformers, academics and all levels of the Canadian judiciary for more than 30 years” (par. 10). It was generally agreed to be incomprehensible and incoherent, “little more than a source of bewilderment and confusion to the jury” (par. 13) in the words of Justice Moldaver, then at the Ontario Court of Appeal. Courts and academics had been asking for reform for close to 30 years. Now that Parliament had, at last, heeded their calls, the implementation of much-needed reforms should not be delayed.
Another important, and somewhat related, consideration was that the new self-defence provision is, in Justice MacDonnell’s view, really only ‘new’ in inverted commas. In reality it distills and captures such general principles as can be found in the jurisprudence that developed around the ‘old’ provisions.
The last reason invoked by Justice MacDonnell, related to the previous one, was that to the extent that the new self-defence provisions have changed the law, they have done so in favour of the accused. They did not deprive anyone of a vested right, as legislation which courts in past cases refused to apply retroactively typically had. This suggested that the usual presumption against giving legislation retroactive effect did not apply with as much force as in these cases, because the main (although not the only) reason for the presumption is fairness, and no unfairness results from applying to a party rules that are as or more favourable than those that would normally have applied to his actions.
That principle has indeed long been recognized, and it is usually accepted that retroactive laws that confer a benefit are much less disturbing from a Rule of Law standpoint than impose or increase a punishment or a burden. However, Jeremy Waldron has pushed back against this intuition in a very interesting paper, arguing that fairness, especially in the narrow sense of “fair warning,” is not all there is to the matter. (Justice MacDonnell recognized this, observing that “the presumption against the retrospective or retroactive application of legislation affecting substantive rights is not only based on considerations of fairness – concerns for stability, certainty and predictability would remain relevant even if fairness were factored out of the analysis” (par. 35).) Prof. Waldron argues that, for one thing, fairness must be understood more broadly, so that while a retroactive law that benefits the person to whom it is directly applied is not unfair to that person, it is potentially unfair to others. And, quite apart from fairness, we should also worry about the effect of retroactive legislation on the authority of law as a whole. Knowing that a legal rule can be changed retroactively diminishes the authority of legal rules, regardless of whether the retrospective change is beneficial or punitive.
These arguments are applicable to Pandurevic. In particular, we might argue that, if Justice MacDonnell is right that the new self-defence provision is as much or more favourable to the accused than the old ones, then applying it to his case is “unfair” to his victim, and that this is not an immaterial consideration even though the victim is not a party to the criminal trial in which Mr. Pandurevic is accused. It is perhaps too bad that Justice MacDonnell’s reasons do not address this question.
On the other hand, Justice MacDonnell points to considerations that, although perhaps not very common, arguably make this a proper case in which to depart from the usually sound intuition in favour of prospectivity. The “mischief” which the law which he decides to apply retroactively is meant to cure isn’t just a matter of policy (or, worse, as in the case that prompted prof. Waldron’s article, partisan advantage). It is a failure of the Rule of Law itself. The Rule of Law ideal requires laws to be not only prospective but, just as importantly, clear, accessible, and coherent. It also requires them to be enforced consistently. If Justice MacDonnell’s assessment of the old law of self-defence is correct ― it at least seems supported by a good deal of authority, though I am utterly ignorant in this area and cannot be sure ― then this law failed to meet the requirements of the Rule of Law to a considerable extent. So Justice MacDonnell had to choose not between violating the requirements Rule of Law or not, but between different ways of breaching them. I am inclined to think that he picked the right poison.
Legislation should normally look to and act on the future. But the law itself always looks both forward and back, and not only to past actions of persons, but to its own past. If what it sees in its past is cringe-worthy, it is appropriate for the law to change retrospectively.