I have written at great length recently about a challenge, now before the Superior Court of Ontario, to the constitutionality of the requirement that would-be Canadian citizens swear an oath of allegiance to the Queen (my posts on the topic are all here). For those who want to read more on the topic, Liav Orgad’s recent paper called “Liberalism, Allegiance, and Obedience: the Inappropriateness of Loyalty Oaths in a Liberal Democracy” is both timely and very interesting. As the title suggests, Prof. Orgad argues that oaths of allegiance ― whether to the Queen, to the nation, or to the constitution ― are something liberal states should not be requiring of their new citizens (or anyone else). It is a rather more radical argument than that advanced by the applicants in the current challenge, and deserves careful consideration.

Prof. Orgad observes that the requirement of an oath of allegiance as a part of the process of naturalization is a widespread one, although the oaths themselves are quite varied. Yet it is not quite clear what the purpose of the oath is. It stands to reason that “the fact that nations require loyalty to an object implies that a difference exists between allegiance and obedience to the law. Both citizens and noncitizens must obey the law yet only citizens owe an additional duty of allegiance” (6). But both the meaning of the concept of allegiance and the significance of an oath in this context are not obvious. Prof. Orgad argues that allegiance means “devotion to the best interest of” as well as “identification” with its object; it involves treating its object as paramount over one’s other duties and interests. It is a very onerous duty. As for the oath, it can mean (and has historically been understood as) one of three things: an expression of a contractual undertaking; a “political test”; or a “symbol of nation-building.” Yet it is not particularly clear which of these meanings the modern oaths of allegiance have, and thus just what purpose they serve.

Furthermore, argues prof. Orgad, while the purpose and thus the benefits of the oaths are uncertain, their drawbacks are significant. First, they are problematic from a Rule of Law standpoint, because they are so vague that the oath-taker cannot really know what obligations he or she incurs as a consequence of taking one. Second, they infringe the oath-taker’s freedom of conscience. An oath is not just “a command what to do” but “a command what to believe” (30); it works not only in the realm of action (as a law’s prescriptions do) but also in the realm of morality. And third, oaths discriminate between naturalized and natural-born citizens, subjecting the thoughts and actions of the former to scrutiny which the latter avoid, with potentially dire consequences.

Prof. Orgad’s final verdict is, accordingly, damning:

 It is not clear enough what loyalty is, why it is justified politically, and why it is legitimate to be burdened with a duty of loyalty as distinct from the duty to obey the law. Neither is it clear what moral goals loyalty oaths serve nor whether any empirical evidence supports the idea that oaths rationally serve their putative purpose. In light of that, it may be the right time to say goodbye to loyalty oaths as a legal institution. (34)

There is much that is interesting in this article; it would not have been possible for me to cover it all here, especially the rich historical details. (For those interested in the history of the use and abuse of the citizenship oath in the United States, I heartily recommend an excellent book that I ought to have mentioned earlier, The Sovereign Citizen by Patrick Weil. I should add, for transparency’s sake, that I know prof. Weil and have done some work for him, including a little ― very little ― for this book.)

I do have a couple of objections to prof. Orgad’s arguments. The first is that he seems to assume that, whatever its exact meaning, loyalty or allegiance is an onerous, momentous obligation. It might not be. As I explain in my prior posts, the majority of the Federal Court of Appeal in Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, thought that the oath of allegiance to the Queen was little more that an acknowledgement of the current constitution, which did not prevent the person who took it to work for constitutional change. Prof. Orgad recognizes this possibility (31), but perhaps does not give it enough attention. Somewhat similarly, my second objection is that prof. Orgad seems to take it for granted that taking an oath of allegiance imposes an actual legal obligation, albeit one the contents of which is ill-defined. This has sometimes been the case, as in the American examples he invokes (and which prof. Weil discusses in greater detail), where citizens were “de-naturalized” for having been Communists, Nazis, or pacifists ― in contravention, it was said, to their oath of allegiance to the constitution of the United States. But, as prof. Weil explains, such de-naturalizations are no longer possible in the United States; nor are they possible in Canada. Any obligation one incurs as a result of taking an oath of allegiance might be symbolic, or at least conscientious, but not legal, which would undermine, at least to some extent, prof. Orgad’s arguments based on the Rule of Law and also on equality. In any case, despite these quibbles, prof. Orgad’s paper is most interesting, and his arguments based freedom of conscience are, in my view, very persuasive.

An interesting question is how they might affect the current challenge to the Canadian citizenship oath. Prof. Orgad’s paper will be published in the Canadian Journal of Law and Jurisprudence, and may well be read by judges deciding the case, especially if it makes its way to the Court of Appeal and the Supreme Court. The “problem” is that it proves rather more than the applicants want. They insist that they are fine with a citizenship oath, so long as the Queen is no part of it. This might seem like a prudent position ― it is usually best to make one’s arguments the least radical possible ― but Prof. Orgad shows that a court adopting it would be making an unprincipled compromise. At the same time, a court presumably cannot go further than the applicants ask and strike down the citizenship oath completely. I’m not quite sure what the way out of this conundrum is.

In any event, prof. Orgad’s paper shows, I think, that oaths of allegiance are like swearwords ― significant yet meaningless, and not something to be said in polite company.

H/T: Larry Solum

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.

For Sale! (Or To Give Away)

Last week, the BC Court of Appeal issued a decision upholding the constitutionality of the “hearing fees” imposed by the government on litigants who took their cases to trial in the province’s courts, Vilardell v. Dunham, 2013 BCCA 65. The fees had been struck down last May by the province’s Supreme Court.  “Some things are not for sale,” Justice McEwan had written in Vilardell v. Dunham, 2012 BCSC 748.  (I summarized that decision here, and commented on it here, here, and here.) According to the Court of Appeal, they are, though they must sometimes be given away fee of charge.

As a general proposition, says the Court, there is nothing wrong with hearing fees. The province has always had them, except for a relatively short period around the turn of the 20th century. Indeed, they have a very long history:

Crown hearing fees and an accompanying exemption for those who cannot pay them have been a feature of the English legal system going back to the Statute of Henry VII, 11 Henry VII, c. 12, in 1494 and which we inherited upon becoming a colony in 1858. (Par. 9)

And this history matters, the Court holds, “because it shapes the relationship between the executive and the judicial branches of government” (par. 11). Since this relationship has always taken the shape of a compromise balancing the government’s right to impose hearing fees with the courts’  “power to waive payment in forma pauperis, then the claim for a constitutional right to be free of them falls away” (par. 14).

Furthermore, the Court holds that there is no general, unqualified right of access to justice. Provincial legislatures, which are responsible for the administration of justice, have the power to impose conditions on access to courts. The Court is also unpersuaded by a Nova Scotia case in which that province’s hearing fees scheme was held to be unconstitutional.

The problem, and the only problem, with hearing fees is “their potential to impede persons who cannot afford them. Wealthy individuals and corporations may not like paying the fees but they are unlikely to alter their litigation strategy because of them” (par. 26), but for people who are not well-off, they act as a real barrier to asserting their rights in court. This upsets the compromise struck by the Statute of Henry VII (par. 21), violates the principle of the Rule of Law (par. 33), and infringes the courts’ constitutionally protected “core jurisdiction” (par. 35-36).

Accordingly, the solution the Court of Appeal chooses is not to strike down the hearing fees, as the Supreme Court had done, but to expand the exemption from the duty to pay them, so that it covers not only the “indigent,” as it did until recently, or even those on public assistance or “impoverished,” as it now does, but also those “in need.” Reading in these words, “intended to mean those who could not meet their everyday expenses if they were required to pay the fees” (par. 41), eliminates the constitutional difficulty. And, contrary to what Justice McEwan had suggested about the “indigency” exemption, since the re-crafted and expanded “exemption is focused on affordability rather than socio-economic status” (par. 37), it is not offensive to the dignity of those who have to seek it.

For my part, I think this is a poor decision, mostly because it fails to engage with some of the key problems of the hearing fees, which Justice McEwan raised in his (admittedly very imperfect) reasons. Most importantly, it does not at all address the suggestion, which I think is sound, that there is something profoundly wrong with the idea that civil justice is a service of which the litigants choose to avail themselves and for which they may legitimately be made to pay. People often do not have a choice but to litigate; nor can they always settle a case. It is one thing to punish a party who refuses a favourable offer to settle, as for example Ontario’s Rules of Civil Procedure do. It is quite another to make a party pay for going to trial regardless of the reasonableness of his position.

The judgment also, in my view, misunderstands the relationship between history and constitutional principles. History helps us ascertain the underlying principles of the constitution (and of our law more generally), but it does not define them. Ultimately, the constitutional principles are the values that underpin the law today, not necessarily those that connect it to the times of Henry VII. As the future Justice Holmes famously wrote in “The Path of the Law,” 10 Harv. L. Rev. 457 (1897),

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

The century of civil wars separating Henry IV from Henry VII is no good warrant for this either. The Court does not explain why the compromise that was good in the times of the first Tudor monarch should still have power over us more than five centuries after his death.

Finally, the Court’s arguments both about both the law and the facts are misguided. As for the law, the concept of constitutionally protected core jurisdiction is a shaky foundation on which to rest the requirement for a capacious exemption from hearing fees, because it only applies to superior (“s. 96”) courts, and not to provincial courts. The Court simply misunderstands the concept as protecting judicial power in general rather than the power of superior courts. In any case, it does not make sense to protect the litigants’ choice to go to trial, and their choices as to the trial’s length, as an aspect of the courts’ control over their proceedings. As for the facts, the Court is surely wrong that the hearing fees―which, after all, are concededly designed to discourage trials, especially long trials, will only affect the litigation choices of those “in need.” Not the very rich or the very large corporations perhaps, but by no means only “those who could not meet their everyday expenses if they were required to pay the fees” will do their best to minimize the amount of fees they owe and thus modify their litigation strategy and perhaps refrain from asserting legitimate claims as a result of the government’s financial pressure (which, to repeat, has nothing to do with the potential reasonableness of the legal positions litigants seek to assert). The exemption crafted by the court is thus still badly underinclusive. It is also underinclusive by failing to include corporations.  A corporation, I think, cannot be described as “impoverished or in need,” without doing violence to the English language. But corporations do have the right to sue (that’s a large part of what legal personality means), and yet a small corporation can be deterred from suing, or going to trial, by the prospect of the hearing fees just as easily as an individual.

The Court of Appeal’s decision is not only mistaken, I think, but very poorly justified. It is based on misunderstandings of fact and law, and fails to address the serious issues the case raised. It accepts, unthinkingly, the proposition that justice is for sale, even if it says that it must sometimes be given away for free. I can only hope that there will be an appeal, and that the Supreme Court will take it.

Smuggling Intentions

Last week the Supreme Court of British Columbia declared Canada’s prohibition on human smuggling, s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, [IRPA] unconstitutional because overbroad. S. 117 provides that, under pain of severe penalties,

[n]o person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by [the IRPA].

The accused in R. v. Appulonappa, 2013 BCSC 31, argued that this criminalized conduct which Parliament did not actually intend to prohibit or prosecute, and so was contrary to s. 7 of the Canadian Charter of Rights and Freedoms, which proscribes deprivations of liberty contrary to “principles of fundamental justice.” One of these principles, long recognized by Canadian courts, is that penal laws must be no broader than is necessary to achieve their objective; in other words, they must not threaten people with punishment for conduct which it is not necessary to punish to achieve Parliament’s goals.

The accused claimed that s. 117 could do just that. Although it is aimed at human smuggling, which international agreements define, roughly, as assisting people to enter into a country illegally in order to make an economic profit, its wording is so broad that it could apply to family members or humanitarian workers helping people come to Canada and validly claim refugee status. Refugees, generally speaking, do have not the papers required by the IRPA. But the statute exempts them from liability for coming to Canada without them. Yet, while the refugees themselves would not be committing any offence, those who “organize, aid or abet” their “coming into Canada” would, regardless for their reason doing so.

The government argued that the examples put forth by the accused were far-fetched, and that, in any case, subs. 117(4), which provides that the Attorney-General has to authorize any prosecution under s. 117, would prevent any abuses. Indeed, it argued that the Attorney-General was legally bound to exercise his authority under subs. 117(4) so as to comply with international agreements that would protect humanitarian workers and family members.

Justice Silverman was unimpressed with the government’s submissions. The accused’s examples were realistic enough, and “technically within the scope of ‘human smuggling’ under s. 117.” Yet “they are not within the objectives that Canada is trying to achieve through s. 117.  To the contrary, it is the clear intention of the government not to prosecute such people” (par. 149). But that intention, of course, is not expressed in the provision, which, as a result, is too drafted much more broadly that necessary. This “makes it impossible for persons to know if certain activities (those of humanitarian aid workers and close family members) will result in charges” (par. 153). The argument that the requirement of the Attorney-General’s authorization would prevent prosecution of those whom Parliament did not really intend to target was equally unpersuasive. Even if, as the government contended, the Attorney-General had a legal obligation to protect family members and humanitarian workers, it is not clear how that obligation could be enforced by courts. And if it was only a matter of policy, it could easily be abandoned.

Thus, although insisting that his “decision is not a negative comment on Parliament’s legitimate goal and objective of passing legislation which targets human smuggling” (par. 166), Justice Silverman struck down s. 117. Trying to read it down or to read into a condition not inserted by Parliament would have amounted to an usurpation of legislative power, so a declaration of unconstitutionality was the only possible remedy.

This is right. It is a basic principle of the Rule of Law that laws should be enforced as written, rather than according to implicit but unstated executive policy or legislative intentions smuggled in by courts through interpretation. The Rule of Law also requires that people have notice of what they can and what they cannot be prosecuted for. A law that threatens prosecution of an innocent activity has a “chilling effect” on that activity: people will fear engaging in it even if the state never really meant to prohibit it. So if the international consensus and Canada’s own policy is not to prosecute certain activities, a revised version of s. 117 should make that clear.

Hate, Dignity, and Law

For those who are not yet sick and tired of my expostulations on the subject, I venture some concluding thoughts on the criminalization of hate speech, and on Jeremy Waldron’s argument in support of such criminalization. My previous posts on the topic are here, here, here, and here.

Prof. Waldron argues that hate speech must be got rid of, by way of criminalization, in order to protect human dignity. Hate speech, or at least written, “semi-permanent” as he puts it, expression of hate undermines the “assurance” that a decent society ought to give each of its members that he or she will be accepted as a human being and indeed as a full member of the society in question. The conception of dignity in play here is that which ties it to status: human dignity is the high status that each of us enjoys by virtue of belonging to mankind. (Prof. Waldron developed this conception of dignity in his Tanner Lectures given at Berkeley in 2009 and available here.) Tolerating hate speech means tolerating denials of this high status for some members of the community, which a decent society shouldn’t do.

But this conception of dignity is not the only one out there, as prof. Waldron himself often points out. And although he is right that one of the ways the law protects human dignity is by upholding status as citizens and rights-bearers, it also protects dignity in other ways. Arguably, one of them, as he pointed out today in the seminar discussion of his work on hate speech, is by protecting freedom of speech. The idea of human dignity points to a vision of the human being as having, potentially, something to say―and being entitled to say it. Speech is one of those things that distinguish man from beast, and prohibiting a human being from saying what he wants is, after a fashion, a way of treating him or her as devoid of this essential human trait. So those who resist the criminalization of hate speech on freedom of speech grounds have a dignitarian card of their own to play.

But there is yet another way in which law protects dignity―and here I am deliberately taking on board the title of a great essay by prof. Waldron, “How Law Protects Dignity.” As he argues in that essay and in others, and as Lon Fuller argued in his classic book The Morality of Law, the law protects human dignity by its very nature, because governance through law is necessarily a recognition of the human beings’ capacity for taking responsibility for their own lives, whether by planning them, by applying to themselves the rules by which their community expects them to live, or in other ways. The law recognizes these capacities by laying down clear, stable, and intelligible rules for the future, so that people can plan their lives taking these rules into account, and follow them without, for the most part, having to be prodded by governmental coercion.

When the law does not give people this ability, it fails to respect their dignity. It does so, for example, when it is retroactive―when new rules are applied not to future behaviour, which can be planned to comply with them, but to past actions which could not have been so planned. More to the point, the law also fails to respect people’s capacity for understanding, planning, and self-application of rules when it is so unclear that even a reasonably diligent person cannot know what the law means or whether it applies to what he or she is about to say or do. Of course no law is perfect in this respect. Law is often complicated. We often need professional help to figure it out. This is not always the case though, and the prohibitions of criminal law, especially, are often intuitive enough. In any event, success and failure here are matters of degree. Being human, we must learn to live with imperfection. But there is only so much imperfection that we should have to put up with.

I think that hate speech laws, perhaps especially the sort of hate speech doctrine advocated by prof. Waldron, do not reach the threshold of minimal clarity to be tolerable in a society that respects human dignity. I won’t repeat here all the arguments I made in yesterday’s posts. Suffice it to say that “hate speech,” as prof. Waldron interprets the idea, is so helplessly vague that it would be fiendishly difficult to say whether a critical statement about a group or its members comes within its scope. Prof. Waldron’s attempts to clarify the notion of hate speech by equating it with group defamation, or to limit it by distinguishing attacks on dignity from mere offence, and denigration of belief from denigration of believers do not work. And if he cannot make them work, I don’t know who can.

The criminalization of hate speech would, in an important way, fail to achieve its stated objective―the protection of human dignity. In the name of protecting the dignity of a few people whose standing in society is called in question by hate speech―and they are bound to be few, in a society decent enough to be thinking about the best way to ensure that all of its members are included―criminalization would undermine the dignity of all.

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.

Can the Viceroy Do Wrong?

Radio-Canada reports that Québec’s former Lieutenant-Governor, Lise Thibault, is trying to avoid having to stand trial on charges of fraud, forgery, and breach of trust, by invoking the common law rule that the Queen can do no wrong. As her lawyer puts it, criminal proceedings oppose the sovereign and the subject, and the sovereign cannot possibly sue herself. And since the charges against Mrs. Thibault relate to her time in office as the Queen’s representative in Québec, that’s what would happen if the case is allowed to go ahead.

Mrs. Thibault’s previous lawyer is apparently skeptical of the odds of her motion succeeding. So is professor Henri Brun, from Laval, whom Radio-Canada quotes saying that the principle applied in civil law―75 years ago―but criminal law is different. “As soon as a public officer commits a criminal act, he is no longer acting within his mandate; he cannot hide behind the government, behind the state” (translation mine).

That seems a little too quick. My own (admittedly quick and probably cursory) research shows that the rule that the Queen―or King―can do no wrong is, in principle, one of civil as well as one of criminal law. The Queen can do no criminal wrong, just as she can do no civil wrong. That’s the traditional common law rule, as it stood in, say, Blackstone’s time. But its import is limited in two important ways.

One is that mentioned by prof. Brun – public officers―or, to use older language, the Crown’s servants―can be sued in their personal capacity for committing criminal or tortious acts. But the question, it seems to me, is whether a Lieutenant-Governor is a public officer. This is not an area in which I am very knowledgeable, but I think that the Queen herself is not―she is not a servant of the Crown. That her servants can be criminally liable does not mean that she can. Mrs. Thibault’s argument is that she is in the same position―that she is, as it were, the Queen’s alter ego rather than her servant. I do not know whether that is correct.

The second limitation on the rule that the Queen can do no wrong has come mostly from statutes adopted by all (to the best of my knowledge) common law jurisdictions, allowing lawsuits against the Crown itself as if it were an ordinary person. Courts too have chipped away at the Crown’s immunity. But these developments, both statutory and common law, have concerned civil proceedings, not criminal.  The Criminal Code, for example, does not contain a provision making it applicable to the Crown.

So if the Lieutenant-Governor is more than a mere servant of the Crown, but rather its full-blooded personification, Mrs. Thibault might have a case. If the question has never been decided though, there are surely very good reasons to opt for a restrictive interpretation of what the Crown really is. “The Queen can do no wrong” is an anachronistic rule, and its development over the last century has been a course of consistent narrowing of its ambit.

Indeed, even if there is precedent standing for the proposition that the rule protects the Lieutenant-Governor from criminal liability, the courts might want to overturn it.

Although there is something worrying in courts abolishing defences that shield the accused from liability, which is necessarily retroactive as to the accused in whose case it happens, they have sometimes done it. Two examples are the British decision of R. v. R., [1992] 1 A.C. 599, in which the House of Lords abolished the common law rule according to which a husband could not be guilty of rape against his wife, and the American case of Rogers v. Tennessee, 532 U.S. 541 (2001), in which a sharply divided Supreme Court did away with the rule pursuant to which an accused could not be guilty of murder if the victim died more that one year and one day after the accused injured him, even though the injuries were the cause of the death. The grounds for these two rules disappeared thanks to the evolution of social morality in the first case and of medical science in the second, so that despite a certain queasiness, courts felt themselves justified in changing the common law to reflect these developments.

The common law rule that “the Queen can do no wrong” is arguably ripe for judicial intervention. Not perhaps in civil matters, where legislatures have made their own choices, which courts must respect, especially since state liability has considerable policy implications which courts might not be able to grasp. But in the narrow field of criminal offences committed by viceroys, these considerations do not apply, and there is no reason for the courts to stay their hand.

See You in Court!

This is the second part of my comments on the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. Yesterday, I wrote about he separation of powers line of argument in Justice McEwan’s reasons. I turn now to the suggestion, which also runs through his judgment, that there is something like an individual right to go to court.

The Charter, of course, contains no such right. Well, at least not generally. Subs. 24(1) does provide, however, that “[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.” Still, if that’s a right to go to court – that’s what it sounds like to me – it’s a narrow one. Most cases have nothing to do with the Charter. The dispute before Justice McEwan was about child custody, and before the question of the fees arose, the Charter was not at issue at all.

Justice McEwan makes two main arguments for why there is a right to go to court, and it is a general one. The first is that going to court is a form of democratic participation, protected by the democratic principle of the constitution. The second is that it is a feature of our constitutional order and a requirement of the Rule of Law. Continue reading “See You in Court!”

Don’t Piss Off the Crocodile

As promised, I have some comments on the B.C. Supreme Court decision striking down hearing fees, which I summarized here yesterday. In fact I’ll have a lot of comments, too many for just one post. I start off today with some thoughts on what I take to be the main line of argument in Justice McEwan’s judgment: the claim that the imposition of the fees is a violation of the separation of powers, encroaching on the superior courts’ protection by the judicature provisions of the Constitution Act, 1867, and violating the principles of the Rule of Law and the independence of the judiciary.

There is a saying (in Russian anyway) that one should not piss off a crocodile before having swam across the river. Now imagine that you’re constantly swimming in that river, back and forth. You really, really don’t want to piss off the crocodile. That seems to be the message implied and to some extent explicit in Justice McEwan’s decision. The river, that’s the courts. The government, and specifically the Attorney-General, is the guy always swimming there. And the crocodile, well, that’s Justice McEwan himself (and presumably his colleagues too).

In fact, as the BC Injury Law Blog reports, all the crocodiles in the river were already quite unhappy before this particular fight came about. But now, this crocodile is mad as hell. The government thinks the river is about to burst its banks because there are too many people going in there. It has decided to build bridges (i.e. steer litigants away from the courts―in private or judicial mediation,  settlement programs, etc.) and to charge people for going into the water. The longer they stay there, the more they need to pay. But this is not really, or at least not primarily about the money. “Cost recovery is only the secondary purpose of the fees according to the AGBC. The first is rationing court time. ” (Par. 309). That, says the crocodile, changes the nature of the river. And the river is his, not the government’s, so he won’t stand for it. Continue reading “Don’t Piss Off the Crocodile”