Seasonal Thoughts

‘Tis the season for, among other things, lots of food, lots of drink, and legal philosophy. Because it’s always the season for legal philosophy, right? It’s also the season for being lazy. So instead of a serious blog post, here are two passages I’ve recently come across ― one about food, the other about drink, both about jurisprudence.

The first is from a very entertaining piece by A.W.B. Simpson, “Legal Iconoclasts and Legal Ideals”, published way back in 1990 (58 U. Cincinnati L. Rev. 819). Prof. Simpson discusses “iconoclast” idea that law, or the common law at any rate, is just whatever the judges say it is ― and they can always say that it is whatever they like. This idea, which prof. Simpson traces to 1345 ― and which was probably out there earlier than that too, ― was more recently presented by the “critical legal theorists,” (a.k.a. the “crits”) as the claim that law is “inherently indeterminate.” As the crits tell the story, prof. Simpson explains,

indeterminacy springs from the fact that doctrine is neither comprehensive, internally consistent, nor fully directive, nor does it provide in advance for the circumstances in which it can be changed.

And then he delivers the tasty punchline, for the sake of which I’ telling this (admittedly old) story:

I suppose the same could be said of any system of human thought whatsoever. Like cooking. Yet it was, some would think, an understanding of the principles of la cuisine that enabled a chef, in trying conditions, to produce Chicken Marengo. (830)

The drink-related quip I wanted to share belongs to one of the “iconoclasts” whom prof. Simpson describes, Robert Rantoul, Jr., who pronounced, in his capacity as a member of the Massachussetts House of Representatives, a rather prolix “oration” on the occasion of the 1836 Independence Day, in the course of which he had much to say about the common law. This, in particular:

[t]he Common Law is the perfection of human reason―just as alcohol is the perfection of sugar. (38)

Wonderful, isn’t it? Too bad Rantoul did not, in fact, mean it as a compliment! Outdoing Bentham, he argued that, being “unknown” and retroactive, the common law was not law at all―it was not even dog law, but pure venom:

The subtle spirit of the Common Law is Reason double distilled, till what was wholesome and nutritive, becomes rank poison. Reason is sweet and pleasant to the unsophisticated intellect; but this sublimated perversion of Reason bewilders, and perplexes, and plunges its victims into mazes of error. (38)

Well, all that I can say is that Rantoul was obviously missing out, on the joys both of the common law and of fine spirits.

Don’t repeat his mistake!

Booze, Fights, and Federalism

As Justice Fish pointed out in a recent lecture on “The Effect of Alcohol on Canadian Constitution,” “alcohol has nurtured our constitutional development from its earliest days.” Canadian constitutional lawyers can proudly say, with Churchill, that we “have taken more out of alcohol than alcohol has taken out of” us. For instance, the double aspect doctrine, after which this blog is named, originates in an alcohol-related case, Hodge v. The Queen, (1883), [1883-1884] 9 App Cas 117. This venerable tradition is alive and kicking. The most recent booze-fuelled constitutional case, R. v. Keshane, 2012 ABCA 330, was decided just last week by the Alberta Court of Appeal.

Ms. Keshane got into a fight outside a bar in Edmonton. Police officers saw the fight and gave her a ticket for contravening s. 7 of Edmonton’s Public Places Bylaw, which provides that “[a] person shall not participate in a fight or other similar physical confrontation in a public place.” Not contesting the facts, she rather challenged the constitutional validity of this provision, arguing that it was, in pith and substance, related to criminal law, and thus beyond the powers of the province of Alberta, from which the City of Edmonton’s bylaw-making jurisdiction is delegated. Parliament has “exclusive Legislative Authority [in] all matters [related to] … Criminal Law” by virtue of subs. 91(27) of the Constitution Act, 1867.

The first thing a court must do when deciding a division of powers challenge to a legislative provision is to determine its “pith and substance”―the thing that it is intended to do and what it really does. The purpose of the prohibition on fighting, says the court, “to promote the safe, enjoyable and reasonable use of such property for the benefit of all citizens of the City” (par. 26). It is different from the criminal law’s purposes in that it aims more at making city streets safer and more enjoyable rather than at protecting the victims of assaults. The effect of the challenged provision is also somewhat different from that of related criminal law provisions, not only in that it prescribes a much milder punishment, but also in that it prohibits some activities, such as consensual fights, which the criminal law does not. The court also finds no “ulterior motive” underlying the prohibition; it is not a disguised attempt to achieve some aim that really belongs to the field of criminal law.

That said, it is also undeniable that the prohibition on fighting overlaps with some criminal law provisions, and that it is possible to describe at as aimed at the maintenance of peace and safety, which are traditional criminal law purposes. Furthermore, the offence of fighting in a public place is not directly linked to “property and civil rights,” over which the province has jurisdiction, although there is an indirect link, insofar as fights on city streets tend to reduce the enjoyment of property, whether public or private. And then there’s the matter of the Supreme Court’s decision in Westendorp v. The Queen, [1983] 1 S.C.R. 43, which held that a municipal bylaw outlawing being on the street for the purpose of prostitution was, in pith and substance, criminal, and thus beyond the powers of the province and the municipality. Indeed, in Westendorp, Chief Justice Dickson clearly assumed that the idea that a municipality could  “punish assaults that take place on city streets as an aspect of street control” was preposterous.

The court decides that this is not enough to make the prohibition on street fighting criminal law. “[A] degree of overlap with criminal law does not compel the conclusion that the dominant purpose is within federal legislative jurisdiction” (par. 37a), and provincial legislation can address potential harm to the enjoyment of property, and not merely actual harm. As for Westendorp, it is distinguishable, because the bylaw at issue there criminalized the very fact of being on the street for the purpose of prostitution, rather than any act that really tended to threaten the enjoyment of property. Justice Dickson’s comment implying that a municipality could not “punish assaults … as an aspect of street control” was an obiter, and “in the context of having found an ulterior motive” (par. 37h) behind the bylaw, which is not present here.

The  court holds that the prohibition on street fighting can be characterized as both criminal and provincial, in equal measure. It thus has “a double aspect,” and is, therefore, valid provincial law.

I’m not quite sure about this conclusion, in particular about the distinctions the court draws with Westendorp. As in that case, it is possible to say that the prohibition on fighting does not really aim at nuisances caused by the fighting but at the act itself, regarded as an evil to be suppressed. And anyway I’m not at all convinced that Chief Justice Dickson’s comment about the punishment of assaults by a municipality, albeit admittedly an obiter, depended specifically on the finding of ulterior motive.

Perhaps the Supreme Court should take up this case. It might seem not to be of national importance. But, to quote Churchill again, it is “pretty hazardous to interfere with the ineradicable habit of a lifetime”―whether drinking in Churchill’s case, or developing constitutional law under the influence of alcohol in the case of Canadian courts.