New Zealand – Double Aspect

Throwing Away the Key

Thoughts on life imprisonment without parole, in New Zealand and in Canada

Last week, Justice Mander of New Zealand’s High Court sentenced the Christchurch mosque shooter to life imprisonment without the possibility of parole for the murder of 51 people, attempted murder of 40 others, and terrorism. This punishment is provided for by section 103(2A) of New Zealand’s Sentencing Act 2002.

Justice Mander’s sentencing remarks in R v Tarrant, [2020] NZHC 2192 hold some lessons for Canadians, as the Québec Court of Appeal is considering the appeals of both the Crown and the accused from the sentence the Superior Court imposed on the Québec mosque shooter in R v Bissonnette, 2019 QCCS 354. In that decision, about which Maxime St-Hilaire and I wrote here, Justice Huot found the possibility of stacking parole ineligibility periods for multiple murders in a way that amounted to sentencing those who commit them to life imprisonment without parole to a cruel and unusual punishment and a deprivation of liberty contrary to principles of fundamental justice, contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms.

Although stating that “the needs of denunciation, of setting an example, and of incapacitation” are especially “pressing” [766; translation mine], Justice Huot went on to find that life imprisonment without a realistic prospect of parole was contrary to Canadian values. Canada, he wrote, “is not a land where the most undesirable elements of the community are shut in a gaol and their very existence forgotten, the key of their liberty having been thrown into the river of a vast collective indifference.” [845; tanslation Professor St-Hilaire’s and mine] For him, the possibility of rehabilitation, even for the worst offenders, means that it is “sophistry to assert that [multiple murderers] should reasonably expect, in a free, civilized, and democratic society, to spend the rest of their days behind bars”. [975] Justice Mander’s cogent remarks help show that this was wrong.

Justice Mander, it worth noting, is by no means insensitive to considerations of humanity and anti-populism that apparently influenced Justice Huot so much. He considers the prospects of rehabilitation, and notes that “[t]he sentence [he] impose[s] must represent a civilised reaction based not on emotion but justice and deliberation”. [177] But these concerns are not dispositive in a case such as this.

Addressing Mr. Tarrant, Justice Mander explains that his

prime objectives are threefold. First and foremost, to condemn your crimes and to denounce your actions. Second, to hold you accountable for the terrible harm you have caused — in plain terms, to attempt to impose some commensurate punishment … on behalf of the whole community, which in particular includes the victims of your crimes and their families, all of whom are a part of New Zealand’s multicultural society. Third … to protect the community from a person capable of committing cold-blooded murder on such a scale and who presents such a grave risk to public safety. [124]

Justice Mander notes that section 9 of New Zealand bill of Rights Act 1990 prohibits the imposition of “disproportionately severe … punishment” (judicially interpreted as calling for a test of gross disproportionality ― similar to the one applied to test the constitutionality of legislation under section 12 of the Canadian Charter of Rights and Freedoms). He notes, also, that “[t]here is European jurisprudence that indicates the imposition of a whole-of-life sentence in the absence of any effective review mechanism is incompatible with
international human rights instruments”. [139] Nevertheless, he finds that nothing short of a life sentence without parole would be proportionate to the crimes here.

Let me quote just one paragraph about the facts (this one drawn from Justice Mander’s discussion of the aggravating circumstances). It is horrible, and there is, alas, so much more horror in this case ― as there was in the Bissonnette one:

It is self-evident that your offending constituted extreme violence. It was brutal and beyond callous — your actions were inhuman. You deliberately killed a thre-eyear-old infant by shooting him in the head as he clung to the leg of his father. The terror you inflicted in the last few minutes of that small child’s life is but one instance of the pitiless cruelty that you exhibited throughout. There are countless more examples. You showed no mercy. [151]

In Justice Mander’s view,

no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold you to account for the harm you have done to the community. Nor [would] minimum term of imprisonment would be sufficient to denounce your crimes. [179]

Indeed, in a comment particularly relevant to the comparison the sentence he imposes with Justice Huot’s preoccupation with not letting people spend their lives behind bars, Justice Mander observes that, were he “to impose a minimum period of imprisonment in an endeavour to meet the purposes that I am required to achieve in sentencing you for murdering 51 people, it could not be less than [Mr. Tarrant’s] natural life”. [180] Ultimately, he does

not consider, however long the length of your incarceration during your lifetime, that it could, even in a modest way, atone for what you have done. Ordinarily such an approach would be a poor guarantee of just and proportionate punishment, but I consider yours is one of those exceedingly rare cases which is different. [184]

I think that Justice Mander is right about all of this. Justice Huot, who would no doubt hurl accusations of “sophistry”, populism, and other assorted sins, would not only be wrong but, at the risk of sounding pompous, morally obtuse. Collective indifference and forgetfulness are not just, or even primarily, concerns in relation to those who commit terrible crimes. It would be no less ― and indeed much more ― wrong to be indifferent to the crimes themselves. And it will still be wrong decades from now.

As I recently wrote in discussing an Alberta judgment on the application of section 12 of the Charter, I think that the gross disproportionality test is a sensible construction of its “cruel and unusual punishment” prong, so far as individuals (rather than legal persons) are concerned. Well, I don’t think there is anything grossly disproportional, or indeed disproportional in any way, in denying the possibility of parole to a man who presents himself to a place of worship with the sole purpose of killing as many people as possible, and proceeds to do just that. On the contrary, I think justice may well demand no less. Perhaps there are policy considerations that would explain why a legislature might not put that option on the table. But at the level of principle, I think the New Zealand approach of making the life without parole sentence available in cases where the objectives of punishment cannot be met by a lesser one is right. The Canadian approach of making the parole non-eligibility terms of multiple murderers run consecutively amounts to the same thing, but less transparently, so I think the New Zealand one is preferable.

Granted, the sentencing court should consider repentance and the prospect, even if unlikely on balance, of rehabilitation. There seems to be a difference on this point between the Québec and Christchurch cases, and if this were the reason for Justice Huot’s decision not to impose, in effect, a life sentence without parole, it might have been defensible. (I’m not sure it would have been. Luckily I’m not a judge in charge of sentencing mass murderers, so I get to punt on this question.) But that’s not the main consideration that motivated Justice Huot. On the contrary, he felt strongly enough the need to denounce and punish Mr. Bissonnette that he rewrote (which is a nice way of saying “broke”) the law to impose a 40-year parole ineligibility period, instead of a 25-year one. That suggests that, ultimately, he thought that, as in the Christchurch case, punishment and denunciation dominate. And, if so, a sentence without parole is warranted.

I fully agree with Justices Huot and Mander that the measure of just punishment is not its ability to grab the headlines, and that a civilized justice system must move away from the “an-eye-for-an-eye” instinct. Cases such as these remind us, in any event, the futility of such fantasies. Even if we were in the business of killing murders, we couldn’t kill them six, or fifty-one, times over.

But Justice Mander’s sentencing remarks are a reminder that one need not be vengeful, or to simple-mindedly parrot the tough-on-crime line, to find, in truly shocking and exceptional cases, that the most severe punishment is warranted. Protecting the lives of the citizens is the state’s first responsibility on any plausible view of its role. Providing justice, in the form punishment, in response to those who take their fellow human beings’ lives is the second. In the face of contempt for human life and indifference to, if not actual pleasure in, human suffering, retribution is called for. In extreme cases, locking such people up and throwing away the key is only fair. I do hope that the Québec Court of Appeal, and the Supreme Court if comes to that, take note.

Telling People Whom to Vote for

An illiberal community seeks to dictate its members’ votes. How can, and should, the law respond ― and quite how different are liberal democracies anyway?

When it comes to election campaigns, where does permissible ― and perhaps even laudable ― persuasion end, and deplorable ― perhaps even illegal ― manipulation or indeed coercion begin? This is a fraught question, as a recent story by Sally Murphy for Radio New Zealand illustrates.

The story concerns what seems to be an totalitarian and abusive fundamentalist religious community, whose leaders seek to dictate not only how members will live, but also how they will vote:

Former members of Gloriavale Christian Community say people still there do not have the freedom to vote for who they want in the general election. … [T]hose inside don’t have free access to the internet or news sources and are told as a collective who to vote for. … One former member … told RNZ Gloriavale leaders would choose which politicians would come and talk to the community before an election.

“They would talk about their policies and what they would do for us then when they left there would be a discussion, but it was usually only a couple of the leaders who would talk,” she said. “They would say we like this party because of this policy and that we should all vote for them because it’s best if we vote as a collective.”

It seems fair to infer that current members are likely not to feel free to cast a vote at odds with the preferences of their leaders. But does that mean that something untoward or illegal is going on, and further, that something can, or should, be done?

Consider, first, existing election law. (I am leaving out the charities law aspect of this issue, mostly because it’s not my area of expertise. For a discussion of the restrictions on charties’ ability to engage in politics in the Canadian context, see this guest post by Benjamin Oliphant; and for a broader discussion of the tensions at work in the regulation of charities, this guest post by Kathryn Chan.) Section 218 of the Electoral Act 1993 makes it an offence and a “corrupt practice” to

make[] use of or threaten[] to make use of any force, violence, or restraint, or inflict[] or threaten[] to inflict … any temporal or spiritual injury, damage, harm, or loss upon or against any person, in order to induce or compel that person to vote for or against a particular candidate or party … or on account of that person having voted for or against a particular candidate

But ― going by the statements quoted in Ms. Murphy’s story ― no threats are being made in relation to voting specifically. Gloriavale members are told to vote a certain way, but not actually threatened with reprisals if they do not. Besides, as the Electoral Commission points out, the secrecy of the ballot ought to mean that all voters, including Gloriavale members, can “express their preferences free of outside influence or coercion”.

Beyond threats, the regulation of the persuasion of voters focuses (in various ways) mainly on spending and to some extent on the use of mass media, especially broadcast media. Private, face-to-face exhortation is not targeted, and it would be absurd if it were. Would we want political conversations within families or among friends and co-workers to be subject to regulation? I should think not, even though some of these conversations may be emotionally charged, and people may be uncomfortable, or even distressed, at the idea of going against the wishes or preferences of those close to them. Again, the primary remedy for such situations is ballot secrecy, with section 218 outlawing outright threats.

If the Gloriavale leadership is not breaking election law, is it nevertheless acting immorally in seeking to influencing the members’ votes, and should the law be changed? Again, in relation to voting specifically, it’s not obvious to me that a wrong is being done. All sorts of people and entities tell us to vote one way or another. I don’t think that they necessarily wrong us just by doing so ― even if these people are close to us and may be reluctant to offend or contradict them. Just as it would be absurd to have legal rules regulating political discussions among friends, family members, or other close associates, I think a moral rule to this effect would be contrary to widely held views of both of a good life and of good democratic citizenship. The latter, in particular, surely permits people to urge others to vote in ways they consider to be better for the community.

What makes the Gloriavale situation disturbing is the broader atmosphere ― the habit of obedience and the limitation of alternative sources of information and opinion imposed on its members. People who tell us, even quite forcefully, that we should vote one way or another do not wrong us if the choice is ultimately ours. People who keep us from making an informed choice wrong us even if they do not impose their own preferences. Imagine, hypothetically, that the Gloriavale leadership did not tell the members how to vote. To the extent that they are simply denied information from the outside world, the members would have no idea, and would not be in a position to make a more meaningful choice than they are now, and those responsible for putting them in this position are to blame.

However, election law is not the remedy for such cases. The challenge of illiberal and authoritarian communities within their midst is not an easy one for liberal societies, but to the extent it can be solved at all, the solution has to be at a rather more fundamental level. Perhaps ironically, though, extreme examples like Gloriavale can help us reflect on the fact that liberal societies themselves are not entirely innocent of trying to restrict the information and choices available to their members.

Hard restrictions are, admittedly, rare. Yet not non-existent. In New Zealand, the Classification Office, headed by a Chief Censor, is empowered to ban publications in various media. While that outfit’s website’s proclaims that its enabling legislation “does not regulate political speech, the expression of opinions, or ‘hate speech'”, it has notoriously banned the Christchurch shooter’s “manifesto”, which is obviously an example of ― horrible ― political speech. As Ilya Somin has shown, reading it, in all its gruesomeness, is actually instructive. But New Zealanders are not permitted to do it, because the Chief Censor, on his own motion, decided that he knew better. In some other democratic countries, especially in Europe, political choices can be restricted by the authorities banning political parties deemed opposed to democracy or the existing constitutional order.

Of course, these are extreme examples. There is no equivalence between excluding some outlier political options while preserving a wide range of choice and excluding all options but one. Arguably that the most important thing about democracy is not the ability to vote for one’s preferred agenda ― which constitutional constraints or the vagaries of the electoral system, not to mention a shortage of people who agree with it and are willing to run for office ― might make impossible, but simply the ability to make some kind of choice, and so to throw the bums out from time to time. Still, the censorship impulse has a common foundation in both cases ― the distrust of people’s ability to make acceptable choices, and a confidence in one’s ability to choose on others’ behalf.

And softer, more insidious ways of shaping the range of choices available to voters are common. How do teachers are university professors speak about political views outside the mainstream ― or outside what they perceive as the mainstream? How, if at all, do the media cover unorthodox politicians, at least those who do not also happen to be celebrities? Are the above-mentioned regulations of spending on election campaigns structured so as to favour established parties ― as they are in New Zealand, for example, with the allowed spending on broadcast advertising dependent, in part, on a party’s share of the vote in the previous election? To ask these questions is not, by itself, to advocate for root-and-branch reform of the education system, the demise of the legacy media, and complete deregulation of electoral campaigns. But here again the effects of seemingly disparate and often well-intentioned policies and practices commonly followed in liberal democracies are a little less different from those of the practices of demonstrably illiberal communities than we might be quite comfortable with.

The difficulty of ensuring that all voters, including those who happen to belong to heterodox and illiberal communities, are able to take a meaningful part in an election if they wish to should not stop us from trying. Features of the electoral process that help facilitate meaningful participation and might strike us as obvious today, such as the secret ballot, did not always exist: they had to be invented, and the law had to be changed to implement them. One should of course be wary of unintended consequences, including those of well-meaning but excessive regulation. But perhaps there are ways to make things easier for members of Gloriavale and others caught in similar situations, without introducing unnecessarily intrusive laws. But as we look for such solutions, we should remember that existing laws and practices constrain the range of political choices available to all citizens, and that some of them have effects that differ in degree, but perhaps not in kind, from those of the impositions at Gloriavale and elsewhere. Not all authoritarians in our midst are content to run cults.

Antigone in Hamilton

The confrontation between New Zealand legal system and a family trying to bury a dead husband/father is eerily like Sophocles’ tragedy

It’s the story of wanting to mourn and bury a family member, and being prevented from doing so by law, perhaps not an unreasonable law. It’s the story of breaking the law to do what one thinks is right, and of not only being punished for it but being scolded by a man self-righteously posing as the voice of his people. It’s an old story. It’s one of the oldest stories. It’s a story that’s 2500 years old.

No, wait. It’s a new story. It just happened in Hamilton. (The New Zealand Hamilton, that is.) Stuff reports that a mother and her children “had flown over from Brisbane after the children’s father suffered a stroke and died on July 20. … She said the children had watched their father take his last breaths on a video call”. On arrival in New Zealand, they were put in quarantine. They applied for a compassionate exemption to attend the funeral, but their application was denied on the basis that “their ‘circumstances were not exceptional'”. So they escaped. The mother and three children were quickly captured, but a 17-year-old boy made it from Hamilton to Auckland, and “was able to spend between three and four hours with his father’s body before he negotiated with police and was detained”. And hence the grandstanding in Hamilton Youth Court:

All appeared in front of Judge Noel Cocurullo, who said that New Zealanders were “sick and tired” of quarantine breaches. “The New Zealand public would be gutted at your behaviour,” he told the family. “You know the rules required of you coming into the country. It’s most important you comply with the rules.”

The mother, though, is not impressed with this. She “told Stuff ‘[she] was doing what any other mother would have done for their children'”.

I’m not sure about “any”, but as Sophocles knew, she certainly has a point. He tells of Creon, the king of Thebes, prohibiting anyone on pain of death from giving the funeral rites to Polyneikes, who tried to bring an invading foreign army to the city. Polyneikes’ sister Antigone defied Creon’s edict and tried to bury her brother.

The resulting conversions, although fortunately not the ultimate outcome (spoiler alert: it’s a tragedy, so everybody dies) foreshadow the recent events quite uncannily. Creon, like Justice Cocurullo appeals to the public authority of the laws, and Antigone, like the mother here, trumps it with that of natural, pre-political obligation:

Creon: Knew’st thou the edicts which forbade these things?

Antigone: I knew them. Could I fail? Full clear were they.

Creon: And thou did’st dare to disobey these laws?

⁠Antigone: Yes, for it was not Zeus who gave them forth,⁠
Nor Justice, dwelling with the Gods below,
Who traced these laws for all the sons of men;
Nor did I deem thy edicts strong enough,
That thou, a mortal man, should’st over-pass
The unwritten laws of God that know not change.
They are not of to-day nor yesterday,
But live for ever, nor can man assign
When first they sprang to being. Not through fear
Of any man’s resolve was I prepared
Before the Gods to bear the penalty
Of sinning against these.

And Creon, like Justice Cocurullo, insists that the people are with him, not with the one who defies him. She, though, begs to differ:

Creon: Of all the race of Cadmos thou alone
Look’st thus upon the deed.

Antigone: ⁠They see it too
As I do, but their tongue is tied for thee.

Creon: Art not ashamed against their thoughts to think?⁠

Antig: There is nought base in honouring our own blood.

And, is it turns out, it is probably Antigone who is right about the state of public opinion. Creon’s son and Antigone’s fiancé, Haemon, challenges his father:

Haemon: ‘Tis my lot to watch
What each man says or does, or blames in thee,
For dread thy face to one of low estate,⁠
Who speaks what thou wilt not rejoice to hear.
But I can hear the things in darkness said,
Ηοw the whole city wails this maiden’s fate,

I won’t pretend to know where the state of public opinion in New Zealand lies on this story. And, wherever it lies, this should not matter for Justice Cocurullo’s verdict. We have the advantage of separation of powers over the Thebans, and this means that our judges must apply the law as it is ― and it is, then, for the Crown and its responsible advisors to exercise the prerogative of mercy in the appropriate cases. I won’t even pretend to say whether this is such a case.

But what I think I can say is that Justice Cocurullo, and other judges ― not just in New Zealand ― should not be so quick to saddle their moral high horse. Another, more recent work of literature comes to mind ― Patrick O’Brian’s Desolation Island (one of the novels in the Master and Commander series), of all things, where Dr Maturin, I believe, has this to say:

judges … not only are … subjected to the evil influence of authority but also to that of righteous indignation, which is even more deleterious. Those who judge and sentence criminals address them with an unbridled, vindictive righteousness that would be excessive in an archangel and that is indecent to the highest degree in one sinner speaking to another, and he defenceless. Righteous indignation every day, and publicly applauded!

And if there is one thing worse still than righteous indignation on own’s behalf, it is that on behalf of others ― who, as often as not, will not actually share in it. That is as true now as it was 2500 years ago.

Lectures Introductory

My notes on the Constitutional Law of New Zealand, for your enjoyment

I taught the constitutional law of New Zealand every year since taking up my current job at the Auckland University of Technology in 2016. For a number of reasons, one of which was the absence until last year of a suitable textbook, I prepared extensive lecture notes ― in effect, an ersatz textbook ― that I distributed to my students. These run to a total of 120 typed pages, and just over 70,000 words. Now, for the foreseeable future, I will not be using them ― I will be teaching administrative law instead. So I thought this was a good moment for posting the whole thing online. Here it is, in case you are looking for an introduction to New Zealand’s constitutional system ― one that is, I hope, accessible and useful, despite its obvious limitations and flaws.

A word on those: the notes weren’t meant to be comprehensive. Their coverage is to an extent a function of the number of lectures I had in a semester, and of my (rather optimistic) beliefs about what I might cover in a lecture. Some important topics (like the separation of powers and the common law) are covered very little; others (like the Treaty of Waitangi and arguments for and against an entrenched constitution), insufficiently. Moreover, I tried to pitch the notes at a level that could be processed by students very early in their study of the law. Inevitably, this meant simplifying certain things, perhaps more, in some cases, than would have been ideal.

I hope that, despite their shortcomings, these materials will be useful or interesting to some readers. The lectures cover three main themes. The first two deal with constitutional fundamentals, including the nature, history, and sources of New Zealand’s constitution. The next five explain the structure of government, with two lectures each devoted to the executive and the legislature, and one to the judiciary. The last four address the limits on government power (primarily, the New Zealand Bill of Rights Act, the Treaty of Waitangi, and the Rule of Law principle). The notes mostly present the law as it is, but readers of this blog will not be surprised that I could not refrain from editorializing from time to time. My commentary and critique will, I hope, be easily identifiable as such.

This should be obvious, but in case it needs saying: I’d be delighted for anyone to use these materials as a resource or teaching aid. Do tell me if you find them useful!

Virtual Insanity: AI and Judicial Review

I am far from an expert on the growing trend in law and life towards “algorithmic justice,” or decision-making by machines. But a report released by the Law Foundation of New Zealand and the University of Otago got me thinking about the use of neural networks, predictive modelling, and other forms of algorithmic learning in the field of administrative law. Specifically, as these complex models and machines develop, there will be an urgent need for administrative law—conceived as a form of control over delegated decision-making—to adapt to its new subjects. The key question is whether new rules governing “machine-learning” administrative law need to be developed, or whether existing rules can be massaged to apply to new contexts. In my view, with some trepidation, I think our existing rules of administrative law developed over centuries can meet the task of regulating the brave new world of algorithmic justice. The New Zealand report raises a number of interesting issues, but I want to moot a few of them to show how our rules of administrative law and judicial review can evolve to the challenge of machine learning.

Consider first the problems of delegation that might occur when considering the use of machines to make decisions. One can imagine two scenarios. In scenario one, Parliament could delegate to a machine in an enabling statute to make decisions, such that those decisions are binding. In scenario two, Parliament could delegate to a human to make decisions, but the human—perhaps due to internal agency rules or guidance documents—might in turn subdelegate to a machine.

Each situation presents important challenges that traditional Canadian doctrines of delegation will need to meet. Take the first scenario. Why would Parliament ever delegate like this? The New Zealand report notes a worrying trend, among experts and non-experts alike: automation bias. Automatic bias occurs when human operators “trust the automated system so much that they ignore other sources of information, including their own systems” [37]. We might imagine a world in the not too distant future where Parliament, as entranced by “experts” as it already is in traditional administrative law, might trust machines more than humans.

For the New Zealand report, the real problem in such scenarios is the “abdication” of decision-making responsibility [40]. For Canadians, this language is familiar—as I noted in a recent blog post, Canada’s only restriction on delegation articulated by the Supreme Court is a prohibition on “abdication” of legislative power. What if a machine is given power to formulate and apply rules? This may constitute the abdication of legislative power because a machine is not responsible to Parliament, and it is worthwhile to ask whether a machine could ever be traditionally responsible—or if a human could be made fully responsible for a neural network, given that it is so difficult to disentangle the factors on which the neural network relies [42]. Rather than delving into this morass, courts might think about adopting an easily administrable rule that is based in the Constitution and the precedents of the Supreme Court: they may need to be more willing to apply a version of the non-abdication rule to the machine context than they would in the human context.

Scenario #2 is trickier. Here, there is no abdication problem at first blush, because the delegation runs from Parliament to a responsible Minister or decision-maker formally answerable in Parliament. But what happens when subdelegation occurs to a machine, and the machine makes the decision for the responsible delegated party? The existing law in this area does not seem to see a problem with this. Take for instance the rule that a decision-maker is permitted to adopt subdelegated investigative reports as the final decision (Sketchley, at para 36 et seq). Here, courts do not apply a more searching standard of review to subdelegated parties versus primary delegations.

But the existing rule presents new challenges in the context of machine learning. In the human context, where an agency head adopts a subdelegated party’s report, the lines of accountability and authority are clear. Courts can scrutinize the subdelegated report as the reasons of the agency. But the same possibility is probably precluded in the machine learning context, at least at first blush. Courts would need to know how and why humans have accepted the “thinking” of an algorithm; or it would otherwise need to understand the modelling underpinning the machine. While these sorts of factors would be apparent in an ideal subdelegated human report, they would not appear at first impression in a decision by a machine–again, especially if the way the machine has made the decision is not easily amenable to scrutiny by a human. In such a context, if humans cannot deduce the basis on which machines made decisions, courts should afford little weight to a machine decision, or otherwise prohibit subdelegation to such machines.

This might appear as a drastic response to the potentially boundless potential of machines. But much like expertise as a reason for deference, courts should only countenance the existence of machine decision-making to the extent that it is compatible with fundamental premises of the legal system, like the rule of law. While one could have different conceptions of the rule of law, most would concede that the ability of parties to seek judicial review is one of its fundamental elements (see, on this note, Crevier). Where a court cannot conduct judicial review, and administrative decisions are immunized from review, the decisiomn is not subject to judicial review through the ordinary channels. Courts already worry about this in the context of deficient administrative records on judicial review (see Tsleil-Waututh, at paras 50-51). The same concern is present where humans, for reasons of lack of expertise or technological impediments, cannot look behind the veil of the machine in a way that is cognizable to a court.

In situations where it is possible to deconstruct an algorithm, courts should, as an element of reasonableness review, insist that humans present the modelling to courts in a way that courts can understand. Just like when courts might be asked to review economic analysis and modelling, they should insist that experts be able to deduce from complex formulae what the machine is actually doing and how it made its decision. Subjecting machines to the ordinary world of judicial review is important as a matter of the rule of law.

Of course, all these thoughts are extremely tentative, and subject to change as I learn more. But it seems to me that courts will need to, at the very least, adjust existing rules of judicial review to suit the modern world of machine decision-making. Importantly, we need not move machines out of the realm of normal judicial review. The rule of law says that all are subject to the law, regardless of status. Even experts—machines or humans—are subject to this fundamental tenet.

Concurring Opinion

Does the Charter’s “notwithstanding clause” exclude judicial review of legislation? Not quite!

Earlier this month, Grégoire Webber, Eric Mendelsohn, and Robert Leckey published an interesting challenge to what they termed “[t]he faulty received wisdom around the notwithstanding clause” over at Policy Options. Professor Webber, Mr. Mendelsohn, and Dean Leckey argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, by a legislature that enacts a statute does not fully insulate that statute against judicial review. Only the consequences of such review, not its availability, are affected. A court can still declare a statute protected by the “notwithstanding clause” to be contrary to the Charter ― albeit that the statute will continue to apply. This is an intriguing argument, and I think that it is correct.

Section 33(2) of the Charter provides that “[a]n Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.” Professor Webber, Mr. Mendelsohn, and Dean Leckey point out that “The word ‘override'”, often used to describe section 33, “appears nowhere and there is no mention of ‘judicial review’. Rather, the text of section 33 focuses on shielding a law’s ‘operation’.” It excludes the application section 52(1) of the Constitution Act, 1982, which would normally render a provision or statute inconsistent with the Charter “of not force or effect to the extent of the inconsistency”. But this does not prevent a court from declaring that an inconsistency exists in the first place.

I agree, and would add a further textual point. Section 33(1) authorizes the enactment of legislation that will “operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”. One provision that is not subject to section 33 is section 24, the Charter‘s internal remedial provision. Pursuant to section 24(1),

[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Normally, if one’s rights are infringed by legislation, the “remedy that is appropriate and just in the circumstances” is a declaration of invalidity pursuant to section 52(1). The invocation of section 33 of the Charter changes “the circumstances”, however, so that ― for as long as it applies ― it is no longer constitutionally “appropriate” for a court to issue a remedy that affects the “operation” of the statute protected by the “notwithstanding clause”. But it would be wrong to make the leap from that incontrovertible truth to the much broader ― and textually unsupported ― proposition that no judicial remedy is “appropriate … in the circumstances” that include an operating “notwithstanding clause”. Rather, a court faced with a challenge to a statute protected by the “notwithstanding clause” must still strive to issue a “just” remedy within the constraints of section 33; that is to say, a remedy that addresses the violation of claimant’s rights (if any) without purporting to affect the operation of the statute.

As Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest, a bare declaration of inconsistency, which does not purport to render the inconsistent statute “of no force or effect”, would seem to be a remedy that is (however minimally) just, and constitutionally appropriate in circumstances that include an operating “notwithstanding clause”. As they note, the New Zealand Supreme Court recently came to a similar conclusion in Attorney-General v Taylor, [2018] NZSC 104. In Taylor (about which I wrote here), the majority held that a declaration of inconsistency was an appropriate remedy that can serve to vindicate the rights affirmed by the New Zealand Bill of Rights Act 1990 within the constraints imposed by section 4 of that Act, which prevents the courts from invalidating or refusing to apply inconsistent legislation. Even when no particular consequence flows from the declaration, it is still of value to the claimant, and granting it is in keeping with the courts’ role of saying what the law is.

This point is particularly apposite in the Canadian context, since the Charter ― even when section 33 is invoked ― is part of what section 52 of the Constitution Act, 1982 describes as “the supreme law of Canada”. As Professor Webber, Mr. Mendelsohn, and Dean Leckey point out, the courts have always stressed their responsibility for setting out the meaning of this law (well, always except when they follow Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395). This is so even in cases where, for one reason or another, the courts consider that their remedial powers do not reach as far as their power to articulate the law. Professor Webber, Mr. Mendelsohn, and Dean Leckey mention Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44, which is one such case; Reference re Secession of Quebec, [1998] 2 SCR 217 is another well-known example. The Canadian constitutional framework, even more than the New Zealand’s, is different from the Australian one, where the High Court held, in Momcilovic v The Queen, [2011] HCA 34, that the making of bare declarations of inconsistency was not a judicial function or even incidental to a judicial function, and so not something that the courts could constitutionally be asked to do.

Another point worth taking away from Taylor is that declarations of inconsistency should not be regarded as addressed to the legislature. Rather, they are vehicles by which the courts point out that the legislature has abused its powers, and the courts are prevented to do more about that fact than simply acknowledge it. The courts should not be thinking in terms of a dialogue with the legislature; it doesn’t matter whether the legislature is of a mind to take the courts’ judgment seriously. Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest that ,”[i]nformed by the reasoned, evidence-based judgment of an impartial, independent court, the government might amend its policy or decide to allow section 33’s protection to lapse”. I suspect that this is a too optimistic ― certainly the New Zealand Parliament appears to be in no mind to remedy the inconsistency with the Bill of Rights Act identified in Taylor (which concerned the disenfranchisement of prisoners serving short sentences). But this doesn’t matter. It is the courts’ duty to say what the law ― and a fortiori the supreme law ― is, Parliamentary indifference be damned.

Professor Webber, Mr. Mendelsohn, and Dean Leckey’s argument that the invocation of section 33 of the Charter does not exclude judicial review, but only limits the consequences that can result from such review is novel, but I think that it is correct. They are right that, by its terms and within its constitutional context, “[s]ection 33 secures a law’s operation; it does not open a Charter black hole”. Given the Canadian provinces’ newfound penchant for relying on section 33, which I fear is only the start of a sinister trend, we may well soon find out what the courts will make of their idea.

End of a Scandal

An attempt to criminalize criticism of New Zeand’s judges is rejected by a parliamentary select committee

Last year, the New Zealand Parliament took up a bill to update and reform the law of contempt of court. A worthy endeavour, but one that was seriously flaw in at least one very important way, as I argued at the time: one of the ways in which the bill changed the law was that it not only codified but seriously expanded the common law offence of “scandalizing the court” ― that is, according to a classic definition in R v Gray, [1900] 2 QB 36, doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority”. (40)

Obviously, the common law offence, if understood broadly, might have applied to vast amounts of perfectly legitimate criticism, including of the sort that is this blog’s trademark, so the courts applied it sparingly and with an eye ― indeed both eyes ― towards preserving the freedom of expression in this context. Even so, the offence has been abolished by statute in the United Kingdom, and left in a zombie-like state in Canada following the decision of the Court of Appeal for Ontario in R v Kopyto, which held that, in its current form, the law of scandalising the court was not consistent with the Canadian Charter of Rights and Freedoms.

By contrast, the bill before the New Zealand Parliament would have expanded the offence, notably by criminalizing the expression of opinion ― including opinion honestly held on the basis of publicly known or fairly stated fact ― if that opinion could undermine public confidence in the independence, integrity, or impartiality of a judge or court. The bill would also have criminalized the true statements of fact having that tendency, unless the accused were able to prove their truth on a balance of probabilities ― thus trenching on the presumption of innocence. And, in addition to this, the bill would also have created enforcement powers that would have made it possible for the prosecutors to exact apologies and retractions from people merely suspected of having committed the “scanadalizing” offence.

In addition to blogging about this, I co-wrote (with Edward Willis) a submission to the Justice Committee of Parliament, which studied the bill. Dr. Willis and I were joined by a number of scholars from across New Zealand. We also presented our views to the Committee in person (we come in at ca. -1:04:07). Our submission recommended that the offence of “scandalizing the court” be abolished, but it also set out alternative provisions that could have ameliorated the worst abuses of the original bill, should the Committee have been inclined to preserve the offence. Of course, our submission was not the only one (though not all the submissions were directed at the issues that interested us).

The Committee delivered its unanimous report last week, and I am happy to say that the expanded offence and created in the original bill is now gone, as are, mostly, the novel enforcement mechanisms. The common law offence, as it now stands, remains, if I understand correctly. (Subclause 29(2) of the Bill provides that “[n]othing in [it] limits or affects any authority or power of a court … to punish any person for contempt of court in any circumstances to which [the Bill] does not apply”, which I think would encompass the contempt of “scandalizing the court”.) There is also a provision, a new Clause 25, allowing the High Court to order a person “to take down, or disable public access to” “a false statement about a Judge or court [such that] there is a real risk that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court”. An interim order can be made on a showing of an “arguable case”, but a final order requires the government to prove the falsity of the statement concerned on a balance of probabilities.

This is not perfect. It would have been better for the offence of “scandalizing the court” to have been abolished altogether. And while, in this second-best of all possible second-best worlds, take-down orders for information which has actually been shown to be false (with the burden of proof, albeit the civil one, being on the government) are not the biggest freedom of expression concern there is, I’m also not a fan of the low threshold for the making of interim orders. Still, much worse has been averted.

As Andrew Geddis ― one of the scholars who have joined Dr. Willis’ and my submission ― has put it,

the system works as you would hope it does. A well intentioned, but overly punative, proposed legislative measure is identified and criticised by those with some expertise in the matter, with MPs having time to reflect and recommend changes in response.

The system has, indeed, worked remarkably well in this case, though when we say “the system”, we should also give credit to the individual members of the Justice Committee. We should also, however, recognize that this is a technical bill of a sort that neither triggers any strong partisan reactions nor makes for good political point-scoring. As Professor Geddis explains, the system isn’t working nearly well enough with the gun control legislation being currently rammed through the New Zealand Parliament; nor did it work especially well in the case of a recent bill to ban some offshore drilling, about which I have written elsewhere.

Professor Geddis also points out that, while the Justice Committee has recognized that it is wrong to punish people for expressing unpleasant opinions about the judiciary, or to make them apologize for it, the New Zealand House of Representatives still takes a different view where it is itself concerned:

Basically, saying rude things about an MP (even true rude things about an MP) can be regarded as a contempt by the House and punished accordingly.

And what can the House do in response to some contempt? Well, it can censure the person responsible. It can fine them up to $1000. It can imprison them for a period up until the next election. And … it can require that they apologise to an MP and to the House itself for committing a contempt.

This power is still used from time to time ― and not just against MPs, but against members of the public too. So there is still some way to go before the evil of compelled apologies is banished from the land. But the Justice Committee has, at least, taken a stand against allowing it to fester.

And I would like to think that, in some small part, this is because I raised hell, and encouraged others to raise hell with me. And of course others still engaged in their own hell-raising activities with which I had nothing to do. Some people, it appears, are not fans of this blog’s rabble-rousing ways. That’s their right, of course. But if the rabble is of the right kind, it can help do great things. As Boris Vian told us, en protestant/quand il est encore temps/on peut finir/par obtenir/des ménagements ― by protesting while there is still time one could end up getting some concessions.

Reading from a Palimpsest

The Supreme Court of New Zealand holds that declarations of inconsistency are available when Parliament disregards the New Zealand Bill of Rights Act

I have previously written about the litigation concerning the power of New Zealand courts to make formal declarations to the effect that an Act of Parliament is inconsistent with the New Zealand Bill of Rights Act 1990. This litigation has now reached its conclusion with the New Zealand Supreme Court’s decision in Attorney-General v Taylor, [2018] NZSC 104. The Court holds, by a bare 3-2 majority, that this power does indeed exist. The decision is interesting for what the judges say, what they suggest, and what they do not say; at least from a theoretical perspective, it might be of some interest to Canadians, as well as New Zealanders.

The case concerns a 2010 statute that disenfranchised prisoners serving sentences of less than three years. (Longer-term prisoners were already disenfranchised by then, and the consistency of denying them the ability to vote with the Bill of Rights was not in issue.) The Attorney-General, having told Parliament that this statute was inconsistent with the Bill of Rights Act before its enactment, conceded the inconsistency, but denied the ability of the courts to issue a formal declaration to the effect that such an inconsistency existed. He had lost at both the High Court and the Court of Appeal.

There are three sets of reasons: what might be described as a quasi-majority opinion by Justice Ellen France, joined by Justice Glazebrook; a concurring opinion by Chief Justice Elias, who largely shares Justice Ellen France’s approach (hence my labelling the latter a quasi-majority); and a dissent by Justice O’Regan, joined by Justice William Young. (For the purposes of writing about New Zealand, I shall follow the local convention of mentioning the first name of a judge to distinguish her or him from a colleague—not necessarily from the same court—who shares that judge’s surname.)

Justice Ellen France starts from the well-established proposition that, even though the Bill of Rights Act contains no provision authorizing remedies for its breach (equivalent, say, to section 24 of the Canadian Charter of Rights and Freedoms), “in order for the Bill of Rights to be effective, the courts had to provide remedies for breaches”. [29] For Justice Ellen France, declarations of inconsistency are just an additional remedy that can serve this purpose. There would need to be “statutory language” to prevent the courts from granting this particular remedy; [41] in its absence, they can do so. Justice Ellen France points out that, by its own terms, the Bill of Rights Act applies to Parliament, and that while it explicitly prevents the courts from refusing to apply inconsistent legislation, the specificity of the provision doing so suggests that other remedies against inconsistent statutes are not categorically excluded.

Moreover, Justice Ellen France rejects the Crown’s submission that legislation inconsistent with the Bill of Rights Act effectively changes the contents of the rights the latter “affirms”, and thus cannot be regarded as inconsistent with it. Rather, “the Bill of Rights remains as the standard or palimpsest albeit Parliament has exercised its power to legislate inconsistently with that standard”. [46] Justice Ellen France also rejects the argument that a declaration should not be made since it is inconsistent with the judicial function and it will have no further consequences. A declaration “provides formal confirmation” of the “rights and status” of the person to whom it is granted, [53] of his or her legal position, even in the absence of any further relief. (On this point, Justice Ellen France refers to the Supreme Court of Canada’s recent decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40.) In any case, a declaration provides vindication for the infringed right, and might be useful should the matter be revisited by an international instance or by Parliament itself.

That said, Justice Ellen France pointedly explains that, while “the Court of Appeal canvassed the relationship between the political and judicial branches of government and the role of the higher courts under the New Zealand constitution”, she does not “undertake a similar exercise”. [66] The purpose of the declaration is to provide such vindication as can be provided consistently with the Bill of Rights Act to the person whose rights have been infringed—not to goad or guide Parliament. While the Court of Appeal had embraced the view that declarations were part of a constitutional dialogue between the legislative and the judicial branches of government, no judge of the Supreme Court so much as mentions the word “dialogue” in his or her reasons.

As noted above, Chief Justice Elias largely agrees with Justice Ellen France. In addition, she emphasises the courts’ inherent jurisdiction (recognized by statute) to “administer the law”, and their statutory power to declare what the law is even if they cannot grant any additional relief. The Chief Justice also stresses “the fundamental nature of the enacted rights (declared as such in the legislation)”, [102] and says that while Parliament is free to legislate in disregard of these rights, their scope can only be modified by an amendment to the Bill of Rights Act, not merely “by inconsistent action”. [103] Indeed, the declaration of inconsistency is address “to those whose rights are affected”, instead of “serving “to assist Parliament in its function, as the Court of Appeal suggested”, [107] a position with which Justice Ellen France expresses her agreement (n87).

The majority judges leave a number of significant issues unresolved—notably that of just when a declaration, which is a discretionary remedy, ought to be granted in response to an infringement of a right protected by the Bill of Rights Act. But they do not endorse the Court of Appeal’s suggestion that formal declarations should be a last resort. While they provide little guidance beyond that, this suggests that declarations may now become a relatively unexotic feature of New Zealand’s constitutional landscape.

Justice O’Regan is none too pleased. He accepts “that effective remedies should be available for breaches of the Bill of Rights Act”. [124] The question, though, is whether a standalone declaration of inconsistency can be such a remedy. It is one thing for a court to point out, in the course of deciding other issues, that a statute is inconsistent with the Bill of Rights Act — this has been done before; it is another to address the question of inconsistency if it is the only issue between the parties, and when nothing else follows an affirmative answer.

In such circumstances, Justice O’Regan says, there simply isn’t anything for the courts to do. Although the Bill of Rights Act provides that it applies to Parliament, it also prevents the courts from refusing to apply inconsistent legislation, and thus is not truly a

limitation on Parliament’s power to legislate. It is at least arguable that to the extent that there is a breach of the Bill of Rights resulting from the passing of inconsistent legislation, it is not of a character for which the courts are required to fashion a civil remedy. After all [the Bill of Rights Act] removes the only truly effective remedy from consideration. [133]

In any case, the bare declaration of inconsistency might not even count as a “remedy” at all, let alone an “effective” one. Justice O’Regan worries that such a declaration “may be simply ignored, with the consequential danger of the erosion of respect for the integrity of the law and the institutional standing of the judiciary”. [134] He is also concerned about “the considerable expenditure in money and resources” [143] that might result from what he sees as pointless litigation about abstract questions of consistency with the Bill of Rights Act. And, after all,

We have had the Bill of Rights Act now for 28 years and a declaration has never been made. … It can hardly be said that this has undermined the objective of the Bill of Rights Act to affirm, protect and promote human rights and fundamental freedoms in New Zealand. [144]

I don’t think that Justice O’Regan is right about this. He sees the matter in absolute terms: in the absence of declarations of inconsistency, the Bill of Rights Act has already provided some level of protection for rights and freedoms; at the same time, even if declarations are available, the level of protection will remain low, since “the only truly effective remedy”, which is to say invalidation of inconsistent legislation, is still off the table. The majority, by contrast, approach the matter in relative terms. For Justice Ellen France and the Chief Justice, what matters is that the availability of declarations will improve the protections provided by the Bill of Rights Act. Considering that essentially symbolic remedies exist elsewhere—for example, very low damages awards that are supposed to “vindicate” rights violated by the executive—the view that another such remedy constitutes a real reinforcement of rights-protection is, I think, more coherent with the big picture of public law.

The majority are also right to reject the Attorney-General’s arguments based on implied repeal of the Bill of Rights Act by inconsistent legislation. Although neither Justice Ellen France nor the Chief Justice raise this point, in my view the interpretive role of the Bill of Rights Act—section 6 of which provides that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”—strongly suggests that it must have a meaning independent both of prior and of subsequent legislation. (Of course, legislation that explicitly amends the Bill of Rights is possible, and only requires a simple majority in the House of Representatives to pass; but the parliamentary majority must, nevertheless, at least be willing to go to the trouble of enacting it).

Justice Ellen France’s palimpsest metaphor is apt. Legislation inconsistent with the Bill of Rights Act adds another layer to the pages of the statute book, but they do not fully erase the rights and freedoms inscribed underneath them. Depending on the purpose for which one reads the statute book, one must sometimes focus on the inconsistent statute (applying it notwithstanding the inconsistency) and sometimes on the Bill of Rights Act (when ascertaining and declaring the inconsistency), but both layers continue to exist.

Speaking of metaphors, I think that the majority do well not to follow the Court of Appeal’s embrace of the “constitutional dialogue” theory. In an article published in the New Zealand Universities Law Review, I argued that, despite its superficial attractiveness as a means to address a “majoritarian malaise”—the worry about a sovereign Parliament’s ability to define or deny the rights of minorities—, this theory is not well-suited to the constitutional context of New Zealand (or any polity that adheres to Parliamentary sovereignty. It makes little sense to speak of dialogue when one of the supposed interlocutors is free to simply ignore what the other has to say, as a sovereign Parliament is free to ignore the courts’ pronouncements about rights.

I concluded that article by writing that

New Zealand’s constitution is one that makes Parliament supreme, and the courts cannot mitigate this fact. They can only point out the abuses of this supremacy that sometimes occur, and they will do so more clearly and with more force if they do not pretend that what they are faced with is a provisional, revisable opinion stated as part of a conversation among equals rather than an abuse of power. (917)

This is what the Supreme Court has done. So much the better.

Scandalizing!

Read Edward Willis’ and my submission on legislation that would censor criticism of the judiciary

A few weeks ago, I wrote about a bill, currently before the New Zealand Parliament, which would codify ― and expand ― the law of contempt of court, in particular as it relates to criticism of the judiciary. (At common law, this is known as the offence of “scandalizinig the court”.) I argued that the offence the bill would create is overbroad, that the defences to it are insufficient, and that the bill, if enacted, would unjustifiably violate the freedom of expression, the freedom of conscience, and the presumption of innocence.

Well, for once, I thought that just ranting on my blog was not enough, so Edward Willis and I started to work on a submission to the Justice Select Committee, which will be studying the bill. We have been joined by my boss, Charles Rickett, my colleagues Warren Brookbanks and Vernon Rive, as well as Andrew Geddis and Eddie Clark, in arguing that, if the provisions related to criticism of the judiciary are not removed from the bill entirely, they need at least to be amended to be more compliant with fundamental constitutional principles and rights. In particular, we propose making the falsity of any statement punishable as contempt an element of the offence, to be proven beyond a reasonable doubt by the prosecution, rather than a defence to be proven the accused; introducing a defence of honest opinion; and removing the ability of the Solicitor General to request, or of the High Court to order, that a person correct, retract, or apologize for a statement that has not been proven to constitute contempt of court; indeed we are proposing getting rid of forced corrections and apologies entirely.

You can read our submission here. Working on it with Dr Willis has been great fun, and I’m very grateful to our co-signatories for their help and support.

The Real Contempt

New Zealand’s Parliament considers legislation that would shield courts from criticism ― and make them instruments of censorship

I do not write about New Zealand very much, although I have been living here for a year and a half. Perhaps it is as well. If the Administration of Justice (Reform of Contempt of Court) Bill currently before the Justice Select Committee of New Zealand’s Parliament is enacted into law without substantial amendments, a blog post making “an allegation or accusation … against a Judge or a court [of New Zealand]” and deemed to create “a real [to] undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” could land me in prison for up to two years, or get me fined $50,000.

Now, much of the Contempt Bill, developed by the New Zealand Law Commission as part of an effort to clarify and update the law of contempt of court, seems to be a worthwhile project. But the provisions relating to criticism of the judiciary are dangerous. They are overbroad, infringe the presumption of innocence and freedom of conscience as well as freedom of expression, and rely on a dangerous amount of discretion in their enforcement. Even if they are not applied to the fullest extent of which they are capable ― and, as I will explain below, I think they are meant not to be ― these provisions will have a chilling effect on lawyers and laypersons alike who might want to comment on the courts, whether in the media, on blogs, or in scholarship. They ought be amended or indeed abandoned altogether.

In a recent post, for instance, I argued that the Supreme Court of Canada had a “pro-regulatory bias”; previously, I criticized Chief Justice McLachlin for “tak[ing] up a partisan slogan” ― Pierre Trudeau’s “just society” ― “and try[ing] to make it into a constitutional ideal”, and mused about the corrupting effects of power on chief justices generally. If I criticize New Zealand’s courts and judges in similar ways, I think it would be fair to say that I would be making “accusations or allegations” that could, at least if read more widely than this blog normally is, “undermine public confidence in the … integrity or impartiality” of their targets. And while I know that not everyone is a fan of my sometimes strongly-worded opinions, I wouldn’t be the only one to fall foul of the Contempt Bill. The cover article of the New Zealand Law Society’s magazine this month is called “Bullying from the bench“, and its very first sentence is: “Bullying judges are identified and discussed whenever lawyers get together”. The same Law Society, meanwhile, is investigating a lawyer, Catriona MacLennan, for calling a judge unfit for the bench after he let off a man accused of domestic violence on the basis that “many people … would have done exactly” the same. Perhaps if the Contempt Bill is passed the Law Society will have a chance to rethink its position as it joins Ms MacLennan among those charged with undermining public confidence in the integrity of the judiciary.

These examples make clear, I hope, that the criminalisation of “accusations or allegations” that “could undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” can capture a vast range of perfectly legitimate, indeed absolutely necessary, criticism. While the Contempt Bill (and the Law Commission’s report) seem to suggest that only “untrue” statements are being targeted, this word appears only in the headings of Subpart 6 of Part 2 and of Clause 24 of the Bill ― not in the text of subclause 24(1) which defines the offense. Rather, the truth (or material truth) of an “allegation or accusation” is, by subclause 24(3), made a defence to a charge under subclause 24(1) ― if the accused can prove the truth of the “allegation or accusation” “on the balance of probabilities”.

This is nowhere near enough to circumscribe the scope of the offence. For one thing, many “accusations or allegations” against the judiciary (such as my claims about pro-regulatory bias, or arguably Ms MacLennan’s views about the unfitness of the nothing-wrong-with-domestic-violence judge) are matters of conjecture or opinion: they are inherently incapable of being proven true. For another, ostensibly factual statements that could in theory be true or false can be made for rhetorical effect, and fail to be “materially true” even though they make a legitimate and easily discernable point (such as the claim about lawyers always talking about bullying judges). Besides, the requirement that an accused prove the truth of a statement when only “untrue” ones are thought to be worthy of being criminalized sits uneasily, to say the least, with the presumption of innocence (protected by paragraph 25(c) of the New Zealand Bill of Rights Act 1990). To be sure, in Canada, a similar truth-as-a-defence provision was upheld as a justified limitation on the right to be presumed innocent in R v Keegstra, [1990] 3 SCR 697. But what is justified in the context of a very narrow proscription of hate speech might not be in the context of a much broader ban on criticizing a branch of government and its officials.

Moreover, it seems to me that asking judges to rule that “allegations or accusations” calling into question the impartiality or integrity of colleagues, let alone hierarchical superiors, are true is putting both them and the accused forced to make that case in an exceedingly difficult position. (Of course, any suggestion that judges might be reluctant to impugn the impartiality or integrity of fellow-judges into question is itself an “accusation” that could “undermine public confidence” in their impartiality and integrity ― and one that is inherently incapable of being proven true.) In Canadian law, there is a principle of fundamental justice according to which any defence to a criminal charge “should not be illusory or so difficult to attain as to be practically illusory”: R v Morgentaler, [1988] 1 SCR 30 at 70 (per Dickson CJ); R v St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 SCR 187) at [77]. While the New Zealand Bill of Rights Act does not require such principles to be followed before a person can be imprisoned, this still seems like a sensible moral guideline. The Contempt Bill does not comply with it.

The Contempt Bill’s provisions on criticism of the judiciary have other serious problems, besides the breadth of the offense it creates and the narrowness if not the illusory character of the defence of truth. Instead of, or in addition to, prosecuting a person for having made “allegations or accusations” against the judiciary, the Solicitor-General is empowered, under subclause 25(2) to “request” a retraction or an apology ― including a retraction pending the determination of that person’s guilt. The Solicitor General can also apply, under subclause 26(1), for an order of the High Court requiring, among other things, a retraction or an apology. Such an order is to be granted if the Court is “satisfied that there is an arguable case that” prohibited “allegations or accusations” have been made. Such orders must, under subclause 26(5) be consistent “with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990”, but non-compliance can, under clause 27, lead to stiff fines ― and “knowing or reckless” non-compliance to imprisonment too.

This, in my view, is inconsistent with the freedoms of expression and conscience, as well taking further liberties with the presumption of innocence. The Solicitor-General’s “requests”, backed by the implicit threat of hauling a non-compliant person before the High Court, will at least produce a chilling effect, if not be outright coercive. “Requests” to retract statements that have not yet been judged to be illegal ― with perhaps, wink wink, nudge nudge, the possibility to avoid prosecution as an inducement ― are especially disturbing. But the prospect of court-ordered apologies is even worse. Persons who are being coerced, by threat of imprisonment, into apologizing are being made to say something they do not believe in and, in an affront to freedom of conscience, also to express a moral judgment about their own culpability which they presumably do not share. A liberal state cannot extort such moral judgments from its citizens. As Justice Beetz, speaking for a majority of the Supreme Court of Canada in “additional reasons” in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, said of a labour arbitrator’s order that a bank sign a letter endorsing the objectives of labour legislation, “[t]his type of penalty is totalitarian and as such alien to the tradition of free nations like Canada,” ― or New Zealand ― “even for the repression of the most serious crimes”. (296) Whatever the Contempt Bill might say about respecting the Bill of Rights Act, it is not possible to make such orders with violating the freedom of expression and the freedom of conscience of their targets.

The fact that these orders could be made, not upon a finding of guilt beyond a reasonable doubt or even on a balance of probabilities, but merely if there is an “arguable case” that a person has published “an allegation or accusation” that creates “a real risk” of “public confidence in the independence, integrity, or impartiality of the judiciary or a court” being “undermined” only compounds the iniquity of the Contempt Bill. To be sure, the orders are, ostensibly at least, a form of civil remedy ― though note Justice Beetz’s description of the arbitrator’s letter as a “penalty”. Thus the New Zealand Bill of Rights Act’s protection for the presumption of innocence, which only extends to persons “charged with an offence”, does not apply. Yet the low burden of proof required for a retraction or an apology order means that rights can be interfered with on the basis of a weak showing by the government, even one that is less likely than not to be justified, and so go against the principle of respect for individual rights if not the right to be presumed innocent itself.

Finally, it is worth highlighting the fact that the Contempt Bill quite clearly contemplates that the enforcement of its proscription on “allegations or accusations” against the judiciary will be highly discretionary. Prosecutions are required to be “in the public interest”, (subclause 25(4)) and “may consider” the existence of any complaints about a judge and “any explanation provided by the Judge” (subclause 25(5)). This, I think, is a tacit admission of drafting failure. The Contempt Bill’s authors implicitly recognize that it is overbroad, and hope that the good judgment of prosecutors can be relied on to avoid fining or imprisoning people for legitimate criticism of the judiciary. This is not good enough. The chilling effect of the criminalisation of such criticism will be felt even if there are no abusive prosecutions, as those who write about the courts constantly watch their words and wonder whether they are crossing the line that exists in the prosecutors’ minds. And there is something perverse for a bill that sets out to clarify the law and give citizens fair notice of their responsibilities vis-à-vis the justice system to rely on prosecutorial discretion to avoid these responsibilities becoming a crushing burden.

The Contempt Bill’s provisions restricting criticism of the judiciary must not be enacted in their current form. Whether any such provisions should be enacted at all is something I still need to think through. If enacted, however, they ought at a bare minimum to make room for what Lord Denning MR described, in R v Com’r of Police of the Metropolis, Ex parte Blackburn (No 2), [1968] 2 QB 150 (CA) as “the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest”, including by saying that a court is “mistaken, and [its] decisions erroneous, whether they are subject to appeal or not” (155) ― and including, too, if the commenter him- or herself is in error. New Zealand’s Parliament should take the advice of Lord Denning when he said that his court would not invoke its powers to find a person in contempt “as a means to uphold [its] own dignity. That must rest on surer foundations.” (155) That this power would now come from statute rather than the common law does not change matters. New Zealand’s courts are independent, and therefore should, just like the English Court of Appeal, “not fear criticism, nor … resent it”. (155) If anything, it seems to me that the courts’ dignity is more endangered by legislation that would make them into instruments of censorship than by criticism.