The messy demand of Charter s. 39(1)

A few months ago, I wrote a couple of posts on this dreaded Charter provision;

39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

My concern then was in determining what this provision – written as if it’s granting a remedy – actually does. The answer, alas, is that it does the opposite, barring remedies for a breach of the Charter unless a particular condition is satisfied. The condition is the bit underlined above. Understanding this condition is crucial, if only because satisfying it allows the mess that is the rest of the s39(1) to be avoided.

Alas, the condition is not much clearer than the rest of the provision, because of two words:

If,¬†otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful…

So, what does ‘may seek’ mean? Pound & Evans (and a couple of others) see three options:

  • ‘gets’, i.e. you have to first get relief for a non-Charter breach from a public authority before you can get relief for a Charter breach from that authority
  • ‘almost gets’, i.e. you have to convince a court that you have a reasonable argument for getting relief for a non-Charter breach from a public authority before you can get relief for a Charter breach from that authority
  • ‘tries to get’, i.e. you have to genuinely try to get a non-Charter remedy from a public authority before you can get relief for a Charter breach from that authority
No-one much likes the first option and split on the second and third. I think they’re all wrong.

It’s easy to see why the first option’s a shocker. You can’t get relief for unlawfulness under the Charter until you get relief for non-Charter unlawfulness. What’s the point? The only thing more unlawfulness would get you is damages, and that’s the one relief the Charter clearly forbids. So, the first option would reduce the Charter’s remedies to (effectively) nothing. Fortunately, the first option is also at odds with the words ‘may seek’. If the drafters wanted this silly result, surely they would have just used the word ‘gets’ (or some equivalent more lawyerly word like ‘ obtains’.)

Alas, the other two options do plausibly fit with the language of ‘may seek’. They also have a (kinda) plausible policy basis: the anti-litigation views of Rob Hulls, oops, sorry, I mean ‘the Victorian community’, who just happened to agree with Hulls when he said, in his Statement of Intent:

[T]he Government does not wish to create new individual causes of action based on human rights breaches.

This statement could mean that he didn’t want a single new case in court just because of the Charter. Hence, the requirement for people to already have a case on foot. People who would litigate anyway without the Charter now get the option of a further relief from the Charter. Indeed, this approach gets some back up in the EM to Charter s39(1):

Sub-clause (1) provides that if a person has a right to seek relief or a remedy otherwise than because of this Charter, founded on the unlawfulness of some conduct by a public authority, then any unlawfulness generated by this Charter (as set out in clause 38) may be a further ground in the cause of action.

‘Further’. Indeed, the EM seems to think there will be just one cause of action, which will now have two grounds.

One downside of this approach is that it may well encourage some spurious non-Charter actions, just to get a foot in Charter’s door. Hence, the two legalistic suggestions in the literature about what ‘may seek’ means. Pamela Tate (who advised the Consultation Committee and is of course the chief lawyer for the government) suggested the ‘almost gets’ standard as a throwaway line in a briefing paper:

This does not mean that he or she must be able successfully to impugn the decision or conduct of the public authority on that independent ground but one would expect that the independent non-Charter ground must be such as to survive a strike-out application.

Ron Merkel QC countered this with an advice that drew an analogy with federal jurisdiction, where the High Court has been so hungry to bring as much litigation as possible within its glorious Chapter Three jurisprudence that it’s willing to grant those dubious benefits to anyone who can make a federal argument non-‘colourably’, i.e. with a straight face. For example, “Your Honour, I believe that this prosecution for a speeding ticket is in breach of Chapter 9 of the Constitution, in that it’s trying to establish a ‘new state’ without going through the constitutionally mandated procedure. Also, by the way, this isn’t a ‘matter’.”

Merkel’s advice includes an interesting passage that reveals why none of these approaches is tenable:

The sub-section’s concern with ‘unlawful’ acts or decisions of a public authority suggests that its primary, but not exclusive, concern is with public or administrative law remedies. That view is supported by the particular focus in s39(1) on remedies that are most likely to arise in the areas of public or administrative law and in the requirement of ‘unlawfulness’ in relation to acts or decisions of a public authority.

Maybe this makes sense if you’re an admin lawyer (like Pound, Evans, Tate and Merkel.) But it makes no sense for a crim law academic like me, where the key remedies are trial remedies and they aren’t remedies against public authorities at all, but rather relief given by the court (e.g. chucking out evidence or staying a trial or judicial warnings or costs or whatever.) In these cases, the person seeking relief isn’t bringing a proceeding; they’ve had a proceeding brought against them. So, there’s no risk of any new litigation, just a new relief within an existing matter.

In this context, requiring that a public authority brush with non-Charter unlawfulness before a Charter relief becomes available is just weird. Say I’m on trial and the main evidence against me was gathered because the local police force and started a new technique of walking up and down neighbourhood streets peering into any window they could see. That’s not illegal under any non-Charter law, but it’s almost certainly a breach of the Charter’s right against arbitrary (and, perhaps, unlawful) interferences in privacy. But, according to the above writers, I couldn’t ask a court to exclude the evidence under the public policy discretion unless I coud come up with a further argument that the police had breached a non-Charter law. Stalking? Nuisance? Why should I have to make these difficult (and pejorative) claims just to make a straightforward Charter argument? Indeed, why should even a civil litigant have to make such a claim just to get, say, a declaration that the police should stop breaching the conduct mandate? Maybe it’s easy to come up with (almost) spurious non-Charter arguments when dealing with decisions by the Fisheries Department or whatever, but these arguments don’t grow on trees in criminal matters involving the police or prosecutors.

Fortunately, there’s an alternative linguistic argument about ‘may seek’. The key is not to read those words in a vacuum, or to focus to narrowly on the phrase ‘may seek any relief or remedy’, but rather to look at the composite phrase ‘may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful.’ This can – and I think should – be read as a test about the law of remedies, not the legality of any particular act or decision. The relevant question is whether a non-Charter law remedy would be available for a particular act of a particular public authority if the act happened to be unlawful. So, for example, the remedy of excluding illegally obtained evidence has some preconditions: the illegality must have caused the evidence to be obtained and it must have been done by a law enforcement agency. So, if some evidence was obtained as the result of an act of an a law enforcement agency, then it can the relief of exclusion may be sought if the act happened to be unlawful. And, therefore, that remedy is available if the act was in breach of the condcut mandate. But if the public authority wasn’t a law enforcement agency or the relevant act came after the evidence was obtained, then the relief isn’t availabe.

This alternative argument also fits with (a different reading of) Hull’s refusal to let the Charter ‘create new individual causes of action’. The key is the word ‘create’, which surely fits more easily with a bar on new laws, rather than new proceedings. Going back to my post on the origins of Charter s. 39(1), this view also fits much better with the original recommendation that led to that section:

RECOMMENDATION 30

A person who claims that a public authority has acted unlawfully by acting in a way that is incompatible with the Charter should be able to:

  • apply to a court for judicial review of the decision of the public authority to act in the way it did; and
  • apply to a court for a declaration that the act of the public authority was unlawful,

where the existing requirements for those proceedings are satisfied.

This recommendation sensibly refers to generic non-Charter requirements, as does the original draft of Charter s. 39(1) in the Consultation Committee’s report:

If an act or decision of a public authority is made unlawful by this Charter, a person aggrieved by that act or decision may seek any relief or remedy…. where that relief or remedy would have been available had the act or decision been unlawful apart from this Charter.

Sigh. Once again, the problems of Charter s. 39(1) are the work of the meddlers (the government wonks who fiddled with the Committee’s draft without explanation and never positively) who, this time around, had the stupid idea of replacing generic references to non-Charter law with a ‘person’ seeking remedies under that law (to match, I guess, the real person who is trying to seek Charter remedies.) Good one meddlers. And good one, too, foolish EM drafter:

Sub-clause (1) provides that if a person has a right to seek relief or a remedy otherwise than because of this Charter, founded on the unlawfulness of some conduct by a public authority, then any unlawfulness generated by this Charter (as set out in clause 38) may be a further ground in the cause of action.

Notice how the non-Charter reference is shifted from the start of the section to the middle of the key phrase about what may be sought. Also, check out the hilarious use of the word ‘right’. That EM drafter just can’t stop using that word all over the shop. Amazing. So, I’ve got to admit that the EM is against me. But, for the reasons given previously, I’d advise against treating the EM as gospel when it comes to the Charter. I’m hoping that Merkel and Tate and Pound and Evans aren’t treated as gospel either!

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