Polygamy Case Ends Not With a Bang ....

The British Columbia Supreme Court brought an end to the polygamy charges against the residents of Bountiful yesterday without a trial. As a result the courts have avoided dealing with the merits of the question of whether or not Canada's polygamy laws can withstand the Charter of Rights and Freedoms. The decision (which can be found here) instead focuses on the question of whether or not the Attorney General can effectively override the final decision of a special prosecutor not to prosecute someone by appointing a new special prosecutor who will. Not surprisingly the Court was not too happy with this idea. It is too easy to say the Attorney General can get around an inconvenient final decision by simply appointing a new decision maker. As a result, the Court and quashed the prosecution on the basis that this was not permitted under the statute allowing for special prosecutors.

This decision is a strong defence of the general purpose of the special prosecutor laws but it does raise a number of difficult questions and highlights the caution that should be taken in appointing a special prosecutor. Special prosecutors are classically appropriate in situations where a crime may have been committed where the government cannot be seen as making the decision to prosecute or not. For example, the Attorney General would be put in a hopeless position if, for example, evidence of political corruption by a senior member of the cabinet were found. A decision not prosecute would detract from the public's confidence in the legal system, yet a decision to prosecute raises the question of whether or not the accused was being put through the legal mill for appearances sake. The appointment of a special prosecutor outside the ranks of the civil service brings an element of independence to this process.

The question of whether or not to prosecute the alleged polygamists at Bountiful is a different sort of question altogether. Here the questions revolve not around the independence of the prosecutor but the correct weighing of the various factors that go into deciding whether or not to prosecute. The earlier decisions not to prosecute largely turned on the question of whether or not Canada's polygamy laws would withstand Charter scrutiny. The special prosecutors (together with many other senior lawyers) at the time thought not, but no-one can suppose this is anything other than a debatable question. The Charter is an evolving beast and is not insensitive to changing social mores and concerns -- particularly in the balancing act that the Court engages in when deciding how s. 1 (the reasonable limits provision) applies. Also societal views with respect to polygamy -- which are intimately tied up with concerns around the protection of equality and the defence of underage brides -- are evolving and the balance of legal, social and political concerns that go into a decision to prosecute or not can change.

From a social perspective, the decision of the Court leaves Bountiful in an odd position. Has this decision effectively immunized the residents of Bountiful from ever being prosecuted for polygamy -- even if the polygamy laws are ultimately upheld? Put more starkly, are the women of Bountiful now forever deprived of the protection that may flow from Canada's polygamy law because of the decision of a special prosecutor in the past? More generally, have all of us as Canadians been deprived of what may be the best opportunity to test the legality of the polygamy laws in a context where the modern concerns about polygamy actually seem to arise?

These problems flow not from the Supreme Court's judgement -- which is likely correct -- but from the decision to appoint special prosecutors in the first place. The special prosecutor law was not intended as a "get out of jail free card" for occasions when the Attorney General wants to avoid a hard decision. The Attorney General is there to make hard decisions about when a prosecution is merited. There is a professional corps of lawyers who are hired to make precisely this kind of decision and do so all the time. Outside advice can be obtained and considered but generally it should be the Attorney General that makes the decision. The special prosecutor should not become a means of dodging such decisions and, as this case shows, such a passing of the buck to someone outside of the elected and accountable system of government can undermine the public interest in seeing legal issues brought forward and resolved.

The Assisted Suicide Debate Continues

In its very last judgment the House of Lords again wrestled with the question of assisted suicide. The Court had earlier determined (in common with Canada) that the bar on assisted suicide was lawful but now had to deal with an ancillary question -- that is whether or not the Director of Public Prosecutions (the head of the English prosecution service) had to give some guidance as to when it would exercise its discretion to allow a prosecution for assisted suicide.

The case concerned a woman suffering from a progressive disease which in time would render her life unbearable. When that time comes she wants to be taken to Switzerland where assisted suicide is lawful to end her own suffering. Her husband is willing to take her. There is a nice legal question as to whether taking somebody to another country where you will assist them commit suicide is even a crime, but the woman and her husband don't want to chance that. Instead they wanted an answer to the question, "is the DPP going to prosecute the husband at all?" At the very least they wanted to know what criteria the Director proposes to apply in making that decision.

The House of Lords, in a thoughtful judgment, ordered that the Director issue a policy outlining the criteria that would be considered in deciding whether or not to prosecute a person for assiting a suicide. The discussion covers a great deal of the assisted suicide debate (including the Rodriguez case) and highlights the continued difficulty that this whole topic raises. In a macabre moment Lord Phillips of Worth Matravers cites an old English decision from the early 1800's (R. v. Burgess) on the problems posed by the crime of attempting suicide:

“We are all of opinion that the jurisdiction of the Quarter Sessions is not taken away by the 24 & 25 Vict. c. 100, and that attempting to commit suicide is not attempting to commit murder within that statute. If it were, it would follow that any one attempting to commit suicide by wounding himself must be indicted for the offence of wounding with intent to commit murder, which until very recently was punishable with death.”

This question will sooner or later have to be dealt with by Parliament (both here and in the United Kingdom) but for now at least the House of Lords has tempered discretion with reason in this debate.

Perhaps this was not a bad gesture for the Lords own last act.

A Revival and an End

After an absence of several months I come back to my blog -- and so a revival. Now to comment on an end.

For several hundred years the House of Lords has stood (in the guise of its Judicial
Committee) as the highest court in the United Kingdom. Its alter ego, the Judicial Committee of the Privy Council equally stood as the de facto highest court in the British Empire and Commonwealth (although slowly but surely its reach has faded away in favour of various domestic high courts).

Despite the diminishment of its formal reach over the years, the House of Lords practically had pride of place and a form of precedence throughout the common law world as the highest court. The United States Supreme Court has always been parochial in its outlook and in its technical and arcane language (and debates) has never fired the judicial imagination of other countries in the way that the House of Lords has. None of the domestic highest courts throughout the remains of the British Empire has ever come close to the level of respect given the House of Lords.

In recent years this central place in the common law has faded. The legal system of the United Kingdom (like all legal systems) has moved away from its focus on the common law. It is now much more preoccupied with the interpretation of intricate British statutes or increasingly focused on the niceties of European Union law. The judgments (or speeches as they are more properly called) of the Law Lords that are read by law students in Canada are older now. But still the recent judgments of the House of Lords (and particularly Lord Bingham of Cornhill -- likely the greatest jurist of this generation in the English speaking world) on the topics of the war against terror and the rights of persons facing persecution are striking their clarity of thought, speech and common sense.

On July 30, 2009, the House of Lords carried out its last judicial function. It rendered a number of judgments (one of which concerned a long delayed claim for royalties for the song "A Whiter Shade of Pale" and another concerning assisted suicide). The the Lords made few quick remarks and then adjourned for the last time. In rather elegant, form the last substantive remarks of Lord Hope of Craighead concerned the inscription beneath the clock in the House of Lords chamber (which in Latin says -- Everything has its time). It can be seen at a convenient recording maintained at the House of Lords website (skip ahead a bit for the sound).

On October 1, 2009, the new Supreme Court of the United Kingdom will become the highest court in the United Kingdom. While the composition of this Court will remain the same as the current judicial committee (sadly Lord Bingham of Cornhill has retired and will not sit as the first President), I doubt it will ever have the mystique or authority outside of the United Kingdom that the House of Lords had. While this perhaps is an inevitable evolution in death of the Empire and the increased autonomy of its former colonies, it still perhaps should give some pause to mark the passing of what was once an institution that served to unite the common law.

Teachers and the Right to Political Protest

The teachers' union recently lost a battle with the provincial government over whether or not they could strike 'mid-contract' to protest political matters. This lost battle for the teachers may, however, be a good sign for their ongoing battle with the provincial over election oriented issue advertising. The court held that the right to strike can be limited despite the fact that it is an interference with freedom of speech. It held that the strike ban is a reasonable limit given the public disruption caused by wide scale teachers' strikes. (The teachers complained that non-union workers were still free to engage in protest strikes -- the court pointed out that this would likely result in consequences such as termination, loss of pay and so forth, something that would not happen to unionized employees).

The government should be concerned about this decision however as there is another battle going on with the teachers over the teachers' right to pay for issue oriented advertising (aka "let's get the Campbell out of here advertising"). Provincial legislation limits such advertising in the run up to a provincial election (that is, when it really matters) and the unions are challenging this ban. Part of the reason, however, the court held that right to strike could be limited is the fact that there are other avenues of protest open to teachers to advance their causes. It certainly seems to me that this is something that weighs in favour of letting the teachers advertise -- if they can't walk, at least they can speak.

Fun with Fish Farms

The British Columbia Supreme Court struck down British Columbia's fish farm regulatory regime yesterday holding that laws that manage things that are swimming in the oceans, have gills, have fins and defecate into the ocean amount to laws managing fisheries (even if the fish are in a large pen). The little difficulty that this posed for the Court is that the power to pass laws that are designed to manage fisheries is given exclusively to the Federal Parliament and not the British Columbia legislature. Now it is true that a group of bureaucrats in Ottawa signed an agreement with a group of bureaucrats in Victoria essentially giving Victoria a free hand to manage the fisheries, but the judge found this less than helpful since he had problems finding the part of our constuitution that allowed bureaucrats to make laws without dealing with those nasty little details like Parliament or (at least) cabinet. Well this should lead to lots of interesting head scratching over the next few weeks.

Bail, Public Confidence and Gun Violence

Courts often recognize that the time has come to get ahead of a building problem and the Ontario Court of Appeal did just that recently by forcing a new debate about secret bail hearings. As our law presently stands the press are banned from reporting any of the information presented at such hearings and are essentially kept to reporting that 'the court denied (or allowed) the Crown's request that the accused be held without bail.'

Canada's bail system essentially is designed to ensure that, except in the case of murder, people are released on bail and the least onerous bail conditions if they can be. This reflects the fact that (1) people are presumed innocent until proven guilty and (2) conditions in pre-trial remand facilities are notoriously bad and it is unlikely that we would actually want to spend the money to build new facilities to house significantly increased numbers of pre-trial detainees. Essentially the rule is that unless the Crown can prove that detention is needed to prevent flight or to protect the public the person is to be released on reasonable terms designed to prevent this (eg turn over your passport and post you mom's house).

The recent spate of bloody and extravagant murders in Vancouver -- which look to be pretty obviously gang related -- has started to liven up the debate about whether or not this is really the right approach to this issue. A professor of criminology at the University of the Fraser Valley was quoted in the CBC yesterday commenting on this issue:

The number of gangs in B.C. has doubled in the past two years, said Darryl Plecas, a University of the Fraser Valley professor.

He said there are more than 100 gangs operating in the province at any given time.
"It's really quite disturbing when we have so many people who are well-known, established gangster types on the street and those people are facing gun charges and released on bail," Plecas said.
"I think, that kind of activity, we really have to give some second thinking to it."

While Professor Plecas' comments seem to oversimplify matters (it is a soundbite after all) they raise a truly legitimate issue in the eyes of the lay people in the public: how can it be that there are so many people running around on bail committing crimes? Of course it is all speculation whether this was true in this case or not, but nevertheless the trend with gang violence in BC suggests that this is a real issue.

Interestingly, the Ontario Court of Appeal struck down parts of these secrecy laws last month. They gave the government a year to fix the problems, but at the heart of their judgment was the observation that the harm of publicity (interfering with the rights to a fair trial) could not be shown in any real way to outweigh the harm that is being done from shielding bail decisions from public scrutiny and debate. Maybe the decisions are good; maybe the decisions are bad. Maybe the problem lies with judges or maybe it lies with the law. The practical problem is that while these decisions are made in secret none of us can really judge this and have a say on what to do. The most ringing statement of the principle applicable in this situation came from Justice Rosenberg (who would have struck down more of the law than was struck down):

[78] In R. v. Hall (2002), 167 C.C.C. (3d) 449 (S.C.C.), McLachlin C.J. wrote at para. 27, “Public confidence is essential to the proper functioning of the bail system and the justice system as a whole”. Again, at para. 31, she wrote: “Without public confidence, the bail system and the justice system generally stand compromised.” Section 517, however, prevents the dissemination of the information necessary to promote public confidence in the bail system. This is the case both at the time the initial decision is made, and later where subsequent events may raise questions as to the wisdom of that decision, as when the accused who is on bail commits further offences. The fact that an accused was on bail when he or she committed a further serious offence often receives wide coverage in the media. However, the public is left to speculate as to why the accused was initially released, because of the s. 517order.

The ruling in the end only struck the rule down for trials that would not be jury trials (this case is inevitably off to the Supreme Court of Canada) but even the judges who disagreed with Justice Rosenberg agreed with this principle.

The time has come for a real debate around how the bail system works (personally I think it comes pretty close to the right balance on the whole) and that debate is not going to be an informed one if it happens with the real process under a shroud of secrecy.

This case also illustrates the importance of the formal press to the advancement of freedom of expression. While the press is a bit self-righteous at times about the sanctity of its rights, the reality is that it is only the press who can truly afford and manage efforts to bring forward challenges like this. While there are people who think that the press can be replaced by the efforts of the amateurs in the cloud of the internet, the reality is different. Cases like this are built on sustained journalistic effort and interest which cannot be sustained by amateurs. The legal challenge depends upon having the resouces and the expert legal teams that only come through the support of the structured press. Left to the blogosphere cases like this would not happen and we would be left in the dark. Thus as we see the economy devastate the press we should avoid the urge to feel schadenfreude -- we will be worse of without them.

Infrastructure Now is No New Deficit

There are two reasons why spending public money now is a good idea and creates no new deficits. I argue that despite what all the naysayers say, we are not burdening our grandchildren by doing this spending (though we may have by buying that flatscreen TV).

First, over the last thirty years we burdened (or really most of us were burdened) with a deficit in order to allow taxation to be significantly cut (largely for people who are getting ready to leave the workforce now). That deficit comes in the form of crumbling infrastructure -- our roads, our bridges, our power generation systems and our hospitals have largely been left to crumble or have merely been modestly maintained. Also our public service has been allowed to wither so that now that now it is old and worn out and about to retire en masse.

All of these things are things that will eventually have to be paid for by somebody and those somebodies were going to be future generations (or in many cases us -- who were the future generations when things were left to rot). Thus the spending that we are going to see in infrastructure today in fact is just the conversion of one form of debt (a maintenance debt) into another form of debt (a cash debt). The good thing about a cash debt though is it brings the maintenance debt out into the open and the current generation will have to start paying -- not our grandchildren. Thus current infrastructure spending actually reduces the burden on our grandchildren (provided the spending is not on junk).

Second, now is the best time to actually keep the costs of such infrastructure spending in control. Labour is available and labour costs are down (just ask anyone here in BC who needs to do something on their house). Material costs are down across the board -- steel, gravel and wood are all at lows we have not seen in years and energy costs are a fraction of what they were six months ago. Furthermore, the prospects of these things shooting up in response to the stimulus package is essentially nil (at best they are likely just not to continue to tumble). As a result we will be building this infrastructure when it is economically prudent to do so (contrast this will the Sea to Sky Highway upgrade which was built when labour and material costs in BC were at an all time high).

Notice neither reason is 'we need to deliver stimulus'. That reason is more controversial and likely to lead to shouting matches and all sorts of abuse but what can one say against fixing the hole in the roof when prices are low?