retroactivity – Double Aspect

A Heap of Trouble

It’s just one decision, and in all likelihood a legally correct one at that ― and yet, precisely because it is likely correct, it illustrates any number of things that are wrong in Canadian law: Thibault c. Da Costa, 2014 QCCA 2437. The case arose out of disciplinary proceedings instituted by the syndic of the Chambre de la sécurité financière, a self-regulation body for Québec’s financial advisers, against the respondent, who at the time was one of its members. The disciplinary committee of the Chambre, which heard them in the first instance, found that the respondent had “swindled” [15; translation mine here and throughout] eight of his clients, and convicted him on 27 counts, imposing fines.

The issue was that the amount of the fines on some of these counts was greater than the maximum authorized by law at the time the respondent committed his offences ― but between the time he committed them and the time the Committee issued its decision, both the minimum and the maximum fines authorized had been substantially increased. The Court of Québec, on appeal, reduced the amounts, concluding that the Committee had applied the new rules retroactively. The syndic appealed and, in a decision written by Justice Thibault, the Court of Appeal restored the Committee’s decision.

The first issue for the Court was the standard of review. Justice Thibault concluded that “although the question at issue concerns a general principle of law,” [26] namely the applicability of a non-retroactivity, as a principle of statutory interpretation, to the amounts of fines which can be imposed by the Committee, the Committee’s decision was entitled to deference. The matter concerned the interpretation of the statute the Committee is entrusted with applying, and “is also related to the efficiency of discipline of the members of the Chambre.” [27]

Here’s the first problem this case illustrates. In 1610, in Dr. Bonham’s Case, Chief Justice Coke was troubled by a professional disciplinary body empowered to be accuser and judge in cases of alleged malpractice. In 2015, few Canadian lawyers are so troubled (and why would they be, since their own professional bodies benefit from the same privilege?), and instead we choose to defer to such bodies’ decisions. But I, for one, find this disturbing. There might be a case for deference, perhaps even on questions of law, to impartial administrative adjudicators ― labour arbitrators come to mind. But the Supreme Court’s one-size-fits-all approach to deference makes no distinction between their decisions and those of disciplinary bodies which violate Chief Justice Coke’s injunction that nemo debet esse judex in propria causa. (In fairness, pursuant to the Chambre’s enabling statute, the Committee is presided by a lawyer who is independent of the Chambre, and who in turn appoints lawyers one of whom must preside every panel of the Committee. However, if I understand the statute correctly the two other member of the panels are chosen from among the Chambre’s members.)

Then again, in this case at least, none of this really matters. Si vous chassez le naturel, il revient au galop. After concluding that reasonableness is the applicable standard of review, and in contrast to her brief reasons on the amounts of fines imposed, Justice Thibault exhibits no sign not only of deferring to, but even of considering the Committee’s decision on the issue of retroactivity. Perhaps because there really isn’t much to defer to ― all that the Committee had to say on this subject was that it “consider[ed] the increase of fines … to be effective immediately.”

Turning to the substantive question of whether the committee could, in fact, apply the increased fines to acts committed before the increase, following a rather abstruse discussion of the distinction between retroactivity and retrospectivity, which I will not summarize (for those interested, Karim Renno, has posted the relevant excerpts over at À bon droit; those looking for a theoretical perspective can do worse than starting with Jeremy Waldron’s article called “Retroactive Law: How Dodgy Was Duynhoven“), Justice Thibault concludes that a sanction can be increased “retrospectively,” i.e. after the facts to which it is applied have occurred, so long as its purpose is not punishment but the protection of the public. Having examined the relevant precedents, Justice Thibault finds that the fines that can be assessed by the Committee, like most other sanctions imposed by disciplinary bodies, are indeed concerned with protecting the public, and do not carry the “true penal consequences” that would make them into punishments. The fact that these fines are based, in part, on the prejudice caused does not overcome the overall protective purpose of the Chambre’s enabling statute:

The more the actions committed are prejudicial to the public, the more the sanction must be important in order to guarantee its deterrent effect on the individual subject to the fine or on the other members of the profession. [38]

The fine thus aims at both specific and general deterrence, but it is not punitive ― on preventive and disciplinary.

Once again, Justice Thibault’s conclusion makes perfect sense in light of the precedents she cites (some of which found that fines of up to a million dollars per offence were not punishment, and thus could be imposed retrospectively) ― and that’s precisely the problem. Does it really make sense to say that a fine is not a punishment? A prohibition on exercising a profession in the future might be described as preventive more than punitive, though I’m not even sure about that, but a fine? At least a part of the trouble here might be, as in the standard of review issue, that courts too easily accept the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role. But there is something else going on as well.

Canadian courts are, in my view, much too comfortable with retroactive application of the law. Although retroactivity might be a good thing in a few cases, one of which I described here, it is generally disturbing. Applying a different law than that which was in force at the time the actions to which is being applied were committed is unfair. It undermines the law’s role as a guide to behaviour, and may end up, as prof. Waldron explains in the above-mentioned article, discrediting the law as a whole. Yet Canadian courts tend to turn a blind eye to these concerns. The Supreme Court, for instance, has allowed legislatures to make a tort out of commercial behaviour that was perfectly lawful when it occurred. In comparison, mere “retrospectivity,” a change to the extent of the sanction attached to an action after that action is committed, as was done here, seems pretty innocent.

This is probably a trite thing to say, but the law should be mindful of the context in which it operates, of the realities to which it applies, and of the consequences which it dictates. When it doesn’t, it risks ending up in a heap of trouble. The Court of Appeal’s ruling ― legally correct, but oblivious to the real nature of the body whose decision it reviews and of the sanction which it upholds ― illustrates this sad truth.

Petty Punishment, SCC Edition

Rather lost in all the noise generated by the Supreme Court’s decision in l’Affaire Nadon is the Court’s decision, delivered last Thursday, in Canada (Attorney General) v. Whaling, 2014 SCC 20, which considered, and found unconstitutional, the retroactive application of the abolition of accelerated parole review by one of the recent “tough on crime” laws. I would like to come back to that decision.

The case was an appeal from a decision by the BC Court of Appeal, about which I blogged here. As I wrote then,

The challenge is not to the abolition of accelerated parole itself: there is no dispute that Parliament can set the terms of parole eligibility. The issue is rather whether Parliament can change these terms for the worse for an inmate after he has been sentenced and started serving his sentence. The respondents argued that this is a violation of their right “not to be punished … again” for an offence for which they were already punished, protected by par. 11(h) of the Charter. The heart of the dispute was whether the new rules making prisoners already sentenced eligible for parole at a later date and on more onerous conditions than the old ones impose a form of punishment on them, or are merely a matter of sentence administration, as the government contended.

The Court of Appeal found that a change of the terms under which an already-sentenced prisoner would be eligible for parole requiring him or her to spend more time in prison was, indeed, a form of punishment, and thus a violation of the Charter, which in its view the government failed to justify under s. 1. The Supreme Court, in a unanimous judgment by Justice Wagner, agreed.

The government argued that the abolition of accelerated parole did not have punitive aims; its purposes were, rather, rehabilitation of the offenders, as well public safety and confidence in the judicial system. It also contended that par. 11(h) of the Charter only applied to cases where a person was more than once subject of proceedings of a criminal nature arising out the same facts.

With respect to the latter argument, Justice Wagner points out that

[t]he disjunctive language of the words “tried or punished” clearly indicates that s. 11(h)’s protection against additional punishment is independent of its protection against being tried again (par. 37; emphasis in the original).

Furthermore, says Justice Wagner, it stands to reason that if the Charter protects one against being punished again for the same offence as a result of the application of due process of law, it must protect against the greater evil of being punished again without due process.

Justice Wagner identifies three types of situations to which par. 11(h) of Charter applies:

(a) a [new] proceeding that is criminal or quasi-criminal in nature (being “tried . . . again”);

(b) an additional sanction or consequence that … is similar in nature to the types of sanctions available under the Criminal Code and is imposed in furtherance of the purpose and principles of sentencing; and

(c) retrospective changes to the conditions of the original sanction which have the effect of adding to the offender’s punishment (being “punished . . . again”).

A change only to the conditions under which a sentence is served will not come within the scope of (c), but a change that results in the sentencing actually lasting longer will. Importantly, this includes changes that result in a person serving a longer part of his or her sentence in prison, even if the overall length of the sentence remains the same. The abolition of accelerated parole for those who, at the time of their sentencing, were entitled to it adds to their punishment.

Although Justice Wagner refuses, “[d]espite some troubling passages from Hansard that are suggestive of [a punitive and therefore] unconstitutional purpose,” to conclude that the object of the retroactive abolition of accelerated parole review was not merely the uniform application of the new sentencing regime to all offenders, as the government contended. However, a law can be rendered unconstitutional by its effects as well as by its purpose, which is what happens here:

[t]he imposition of a delay in parole eligibility in this case is analogous to the imposition of delayed parole eligibility by a judge under the Criminal Code as part of the sentence (par. 72),

which is a form of punishment. Since the is done retroactively for those who were already punished for their offences, par. 11(h) of the Charter is infringed.

Justice Wagner then turns, briefly, to s. 1 of the Charter. Justice Wagner finds the objectives of effective and uniform parole administration, and the support of public confidence in the justice system which is supposed to result form it, pressing and substantial. He also finds that the retroactive abolition of accelerated parole review is rationally connected to these objectives. It fails, however, at the “minimal impairment” stage, because

[t]he Crown has produced no evidence to show why the alternative of a prospective repeal, which would have been compatible with the respondents’ constitutional rights, would have significantly undermined its objectives (par. 80).

Although Justice Wagner’s s. 1 analysis seems a little quick, almost an afterthought, I think that this he and the Court get the outcome right. As I wrote when commenting on the Court of Appeal decision

[w]hatever the reasons for abolishing accelerated parole for the future, imposing tougher punishment retroactively seems merely petty.

UPDATE: Michael Spratt delves into the detail of how Parliament and the government miserably failed ― and indeed refused to ― consider the constitutionality of the retroactive application of the abolition of accelerated parole. It is an instructive as it is sad, particularly for those who like to believe that legislators take rights seriously.

Looking Back

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.

Petty Punishment

The Court of Appeal for British Columbia has struck down yet another element of the “tough-on-crime” agenda of the Conservative government in a recent decision, Whaling v. Canada (Attorney General), 2012 BCCA 435, holding that the abolition of accelerated parole could not be applied to prisoners sentenced before the coming into force of the Abolition of Early Parole Act, S.C. 2011 c. 11. (I wrote about cases in which other parts of the “tough-on-crime” programme were struck down here and here.)

Three prisoners who would have been eligible for accelerated parole under the old terms of the Corrections and Conditional Release Act, S.C. 1992 c. 20, which were in force at the time of their sentencing, challenged the constitutionality of applying to them the abolition of accelerated parole. They won in the Supreme Court of British Columbia. The federal government appealed. It lost.

The Court observed “that not every consequence of being convicted of a criminal offence is ‘punishment'” (par. 48)―being required to submit a DNA sample, for example, is not. However, “courts have consistently found delayed parole eligibility to be ‘punishment'” (par. 49) when it is imposed by a sentencing court. In this case, though, it was imposed not by a sentencing court, but by legislation (and thus on all prisoners who might have been eligible for accelerated parole rather than on one in particular in response to his specific crime).

The government argued that the purpose of the legislation made all the difference, and the purpose of the Abolition of Early Parole Act was not to punish, but “to improve sentence management” (par. 50). The Court did not really dispute this characterization of the statute’s purpose, though there was some evidence that it was, at least to some extent, intended as a punitive measure. Rather, following Supreme Court precedent, the Court held that the statute’s effects are as important as its purpose when considering its constitutionality. And the effect of the abolition of accelerated parole is undoubtedly to increase “the harshness of the sentence” the respondents will have to serve. In that, it is “no different from that of parole ineligibility imposed by a judge” (par. 57), which had been held to constitute “punishment” within the meaning of the Charter. Imposing this form of punishment on those who had already been sentenced previously, as the respondents had, was contrary to par. 11(h) of the Charter.

Nor could this violation be justified under s. 1. However worthy the general objective of the Abolition of Early Parole Act might be, what must be justified is its retroactive application in violation of constitutional rights and, the Court held, they are not important enough to do that. It was simply not necessary abolish accelerated parole retroactively.

Indeed. Whatever the reasons for abolishing accelerated parole for the future, imposing tougher punishment retroactively seems merely petty.

La primauté de la législation

La semaine dernière, la Cour supérieure du Québec a rejeté la demande visant, entre autres, à faire déclarer inconstitutionnelle la “Loi 204”, qui exempte rétroactivement l’entente sur la gestion du futur amphithéâtre de Québec, conclue entre la ville de Québec et Qubecor, de l’exigence d’un appel d’offre (dans la mesure où cette exigence s’y appliquait, ce que la ville a toujours nié), dans De Belleval c. Québec (Ville de), 2012 QCCS 2668. Les demandeurs avaient formulé une multitude d’arguments constitutionnels à l’encontre de la loi. Ils soutenaient qu’elle violait la primauté du droit, notamment en raison de son caractère rétroactif, ainsi que la Charte canadienne des droits et libertés et la Charte des droits et libertés de la personne (québécoise), en enfreignant leurs droits à la liberté de conscience et à la liberté d’expression, à la sécurité, à un procès équitable, et aussi en étant vague et excessive. Une si longue liste de prétentions est généralement un mauvais signe – un signe de désespoir sinon d’incompétence de l’avocat – et elle l’a été en l’espèce. Le juge Jacques n’a pas été persuadé.

L’argument le plus étoffé des demandeurs portait sur la rétroactivité de la Loi 204. La plupart des philosophes du droit qui se sont penchés sur la primauté du droit considère la non-rétroactivité du droit comme un élément essentiel de ce principe. Le droit est censé guider l’action de ses sujets. Or, une loi rétroactive, qui applique certaines conséquences à des actions déjà commises, ne saurait le faire. De plus, comme l’a fait remarquer notamment Lon Fuller, elle remet en cause l’intégrité des autres lois en vigueur, laissant entendre qu’elles sont susceptibles d’amendement rétroactif. Même une loi rétroactive qui accorde des bénéfices ou écarte les sanctions (plutôt que d’en imposer), comme la Loi 204, peut être problématique à bien des égards, comme le soutient Jeremy Waldron dans un article intitulé “Retroactive Law: How Dodgy Was Duynhoven“. La rétroactivité est une des critiques les plus communes de la common law ou du droit prétorien en général, par exemple dans la célèbre formulation de Jeremy Bentham, qui comparait la common law à la “loi” qu’un homme donne à son chien en le battant pour une transgression quelconque (dont le chien n’avait évidemment pas idée qu’il s’agissait d’une transgression), et les défenseurs de la common law, tels que Ronald Dworkin et F.A. Hayek, font beaucoup d’efforts pour repousser cette attaque.

Cependant, la jurisprudence canadienne est claire. Outre la garantie de la non-imposition de sanctions criminelles rétroactives à l’alinéa 11(g) de la Charte canadienne, rien n’empêche les législatures canadienne de légiférer de façon rétroactive. C’est l’enseignement, par exemple, de l’arrêt de la Cour suprême Colombie‑Britannique c. Imperial Tobacco Canada Ltée, 2005 CSC 49, [2005] 2 R.C.S. 473, où la Cour à jugé constitutionnelle une loi créant rétroactivement un recours permettant au gouvernement de recouvrer les dépenses causées par le tabagisme. Le juge Jacques rejette donc l’argument fondé sur la rétroactivité – avec raison, eu égard à la jurisprudence qui le liait (et qu’il ne manifeste, du reste, aucune envie de remettre en question).

Cette jurisprudence, à mon avis, est un désastre. Le grand A.V. Dicey qui, à la fin du 19e siècle, faisait l’éloge à la fois de la “souveraineté du Parlement” et de la primauté du droit (qu’il a été le premier à étudier de façon systématique), s’en serait félicité. (Ce n’est pas une coïncidence que Dicey était plutôt favorable aux “indemnity acts” – des lois rétroactives écartant des sanctions que le droit normalement en vigueur attache à certains actes, similaires la Loi 204.) Cependant, les opinions académiques sur la primauté du droit ont bien changé depuis un siècle. Or, les tribunaux canadiens ont toujours une compréhension très étroite de la primauté du droit, la limitant à l’exigence de l’existence de règles de droit et d’une autorisation juridique pour toute action gouvernementale, mais excluant – sauf garantie constitutionnelle explicite – tout autre exigence de forme, de procédure ou de fond que la primauté droit, telle que comprise par les philosophes du droit, impose aux législatures (et que le professeur Waldron revoit, par exemple, ici).

Les autres arguments des demandeurs sont rejetés encore plus facilement. La Loi 204 ne limite pas leur liberté de conscience ou d’expression, puisqu’elle ne les empêche pas de s’exprimer. Elle ne menace en rien leur sécurité. Elle ne les prive pas de leur droit d’ester en justice, même si elle change le droit applicable au litige qu’ils ont amorcé. Elle n’est ni vague ni excessive. Il est difficile de voir sur quoi étaient fondées ces prétentions, et il n’est pas surprenant qu’elles soient rejetées.

Le problème de la Loi 204, sur le plans des principes juridiques, c’est bien sa rétroactivité, et aussi son manque criant de généralité, une autre exigence classique de la primauté du droit que les tribunaux canadiens ne reconnaissent pas. On pourrait dire qu’au lieu de la primauté du droit, la jurisprudence canadienne, très réticente à censurer les législatures, donne effet à la primauté de la législation.