The scope of Charter s. 25(1)

As I guessed, Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 – at last available on Austlii – proves to be an important judgment on the Charter’s right to be presumed innocent. Based on a newspaper account of Sabet’s case, I thought he would lose and that proved to be correct. Alas, Justice Elizabeth Hollingworth’s analysis is quite a disappointment on a number of grounds. Indeed, the judgement is yet another Charter debacle.

Ahmed Sabet, a doctor presently facing eight charges of rape or indecent assault of a patient, challenged a decision of Victoria’s medical profession regulator to suspend his licence to practise. His Charter claim relied on Charter s. 25(1) (the right to be presumed innocent) and Charter s. 38(1) (the conduct mandate). Hollingworth framed the legal issues as follows:

(a) Has a Charter right been engaged? (the engagement question)
(b) If so, did the public authority impose any limitation on the right? (the limitation question)
(c) Was any such limitation reasonable and justified within the circumstances set out in [Charter] s7(2)? (the justification question)

A lot of her judgment is devoted to the first, engagement, question, because there is a major unresolved question about the scope of Charter s. 25(1).

25. Rights in criminal proceedings

(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

There’s no doubt that Sabet, by virtue of the rape and indecent assault charges, is a ‘person charged with a criminal offence’ and therefore he acquired the ‘right to be presumed innocent’. He hasn’t yet been proved guilty according to law (and he may indeed be acquitted), so he still has the right in Charter s. 25(1).

The crucial question is: where does he have that right? Obviously, he’ll have it at his trial. But does he have it in other settings too? The text of the section doesn’t place any limit on the settings when Sabet is to be presumed innocent, but the section’s heading refers to rights ‘in criminal proceedings’. Does that mean that Sabet has no right to be presumed innocent in non-criminal proceedings (like the hearing before the Medical Practitioners Board?)

According to Hollingworth’s description, Sabet’s lawyers argued, as I do, that the heading should be ignored:

Dr Sabet argues that the language of s 25(1) is inconsistent with the limitation of the presumption to criminal proceedings, and therefore the heading must give way.[63] He says that the language of s 25(1) is clear and unambiguous in setting out the human right, namely, that “a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.” He argues that “such clarity in stating the right is inconsistent with any attempt by the heading to restrict the context of that right solely to criminal proceeding.” He does not really explain why that is so.

Alas, that narky last line is an example of the skeptical and dismissive tone of Hollingworth’s entire judgment. Hollingworth doesn’t explain (‘really’ or otherwise) why Sabet’s argument wasn’t explained. Sabet’s argument seems quite clear and self-explanatory to me; headings shouldn’t have a substantive effect.  Hollingworth seems to disagree:

Headings form part of the Charter, and are to be used in its interpretation. The heading is neither ambiguous nor obviously inconsistent with s25(1).

The Interpretation of Legislation Act certainly provides that headings to sections (in post-2001 statutes like the Charter) ‘form part of’ a statute. But I’d be surprised if that means that every heading is a substantial enactment, operating as if it was an extra sub-section, e.g. as if Charter s. 25 had a sub-section (5) that said ‘This rights in this section are only available in criminal proceedings.’ (See here for a similar view.) Such an approach seems to be incompatible with the major purpose of headings, which is to make statutes more accessible. Of course, headings may assist in interpretation of ambiguous words, but where’s the ambiguity in the text of Charter s. 25(1)?

Hollingworth, however, thinks that headings are a quite legitimate way for Parliament to set out a signfiicant rule of law:

Dr Sabet points out [as I did, here] that, in New Zealand, the equivalent legislation expressly provides that the relevant rights (including the presumption of innocence) only arise “in relation to the determination of the charge.” He says that the Victorian drafters could have used such a limiting phrase, had they wished to limit the presumption to the hearing of criminal charges. Obviously, they could have done so. But the New Zealand approach is not the only drafting technique which can achieve that end. The use of a section heading which specifically refers to criminal proceedings is another such drafting technique, as the Canadian courts have recognised.

The New Zealand approach isn’t a drafting ‘technique’; it’s just an example of a statute saying what it means. As for Hollingworth’s notion that a heading is a ‘drafting technique’, I think it just beggars belief:

Uh oh, George. The ICCPR says that ‘Everyone charged with a criminal offence shall have the right to be presumed innocent.’ But I don’t want people to be presumed innocent in civil matters!

OK, Andrew. I’ll just insert the words ‘in criminal proceedings’ after ‘innocent’, OK?

No, don’t do that. Just put the words ‘in criminal proceedings’ in the heading!!!

The heading? Why?

Because headings aren’t included in the word limit!

Um, OK, but I’ll put a note in the Explanatory Memorandum about how the right to be presumed innocent only applies in criminal proceedings.

No! Just leaving it in the heading! Word limit! Word limit!

For god’s sake!

As for Hollingworth’s claim about Canadian Courts and their supposed endorsement of this technique, she’s simply wrong. In her review of overseas authorities, Hollingworth claims that s11 of the Canadian Charter is ‘headed “Proceedings in criminal and penal matters”‘. But that isn’t a heading, it’s a ‘marginal note’. (The relevant ‘heading’ for s11 is ‘legal rights’, which is the heading of the division.) In the main Supreme Court case on the scope of s11, the Court unanimously held that such marginal notes have, at most, a weak status as aids to interpretation. The majority said that the ‘marginal note’ to s11 provided ‘some support’ for the view that the word ‘offence’ in s11 is limited to criminal offences (as opposed to disciplinary ones.) Notice that the Court here used the note to interpret an ambiguous word in the text, not to impose a substantial limitation on it. According to my database search, the SCC has never made any reference to the ‘heading’ of s11 in any other case. Drafting technique, my arse.

Hollingworth drew on an even sillier argument to firm her view about Chater s. 25’s heading. The argument looked to another sub-section of Charter s. 25:

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees –

(a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and
(b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and
(c) to be tried without unreasonable delay; and
(d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and
(e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and
(f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978; and
(g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and
(h) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution; and
(i) to have the free assistance of an interpreter if he or she cannot understand or speak English; and
(j) to have the free assistance of assistants and specialised communication tools and technology if he or she has communication or speech difficulties that require such assistance; and
(k) not to be compelled to testify against himself or herself or to confess guilt.

She observes:

If one considers, for example, the “minimum guarantees” in s-s (2), it cannot sensibly be suggested that they create independent rights, exercisable outside of criminal proceedings, merely because a person has been charged with a criminal offence. For example, s-s (2) (i) and (j) must mean that an accused person is entitled to a free interpreter, or free communication assistance, in criminal proceedings concerning that offence; not that they are entitled to a free interpreter or assistance at home, or at work, or in civil proceedings, simply because they happen to have been charged with a criminal offence.

If Hollingworth had bothered to check the ICCPR, she’d see that the Charter’s drafters substituted the ICCPR’s words “the language spoken in court” with “English”. Does she really think that that mundane switch in drafting (accompanied by a similarly worded further guarantee about communication assistance) is a reason to read down the scope of all the rights in Charter s. 25? Notably, Hollingworth doesn’t mention s25(2)(k), the privilege against self-incrimination, which has long been accepted as applying outside of criminal proceedings, including ‘in civil proceedings’ and, for that matter, ‘at home, or at work’. According to Hollingworth’s approach, the heading of Charter s25 means that Sabet could be called now be called as a witness in a civil suit (say by one of his patients), or for that matter by the Medical Practioners Board, and be compelled to say whether or not he raped the complainant, and that wouldn’t involve any limitation of his rights in Charter s. 25!

Indeed, Hollingworth made no effort to trace the origins of the very heading that she relies upon. She fails to observe that it wasn’t a Victorian idea at all, but rather was copied from the ACT Human Rights Act. The origin of the heading – and, indeed, the separation of the rights in Article 14 into two parts – was the ACT Bill of Rights Consultation Committee‘s concern to clean up the wordy nature of the ICCPR by cutting out most of the examples dotted throughout it. But the Committee rightly recognised that the presumption of innocence and the minimum guarantees are not mere examples:

The rights in the two Covenants are expressed in general terms. Incorporating the rights into ACT law requires some modification of the language used in the ICCPR and ICESCR. In some instances, the provisions of the Covenants highlight particular ways in which the rights should be observed. For example article 7(a) – (d) of the ICESCR sets out particular examples of ‘just and favourable conditions of work’. The Committee considers that these provisions serve to illustrate the general right of everyone to just and favourable conditions of work and it is not necessary to incorporate specific examples in the Human Rights Act. In other cases, such as article 14(3) of the ICCPR, it is appropriate to incorporate specific features of the right to a fair trial in criminal proceedings.

The heading ‘rights in criminal proceedings’ appears in the Committee’s draft Bill. Nowhere in the discussion is there even a hint that the Committee’s intent was to limit the scope of those rights.

Hollingworth then purports to make a survey of foreign and international law. Unsurprisingly, given her discussion of the ‘heading’ to Canada’s s11, it’s shoddy. Really shoddy:

  • She claims that Canada’s ‘s11(d) has been held not to apply in administrative or civil proceedings’ in this Supreme Court case. In fact, that case makes no mention of s11(d), but instead concerns s11(b)
  • She claims that this Canadian case is ‘similar to’ Sabet’s. That’s hilarious, because the case actually involved charges for traffic offences, not rape. More importantly, from an analytical perspective, while Sabet’s case was about a procedure that ran in parallel with criminal proceedings,  the procedure in the Canadian case was a substitute for criminal proceedings (i.e. a civil/administrative procedure for dealing with traffic offences.) The court held that once the procedure was invoked, there were no charges left to consider. The Board’s procedure against Sabet hardly has that effect!
    [EDIT: Oops. I’m the one who’s wrong. On a further reading, it appears that the charges (for drink driving) remain live in the Canadian case, so the proceedings are indeed parallel to the criminal one. Rather, here’s the relevant difference: this isn’t a discretionary regime at all and there is no requirement that charges are ever laid. Rather, licence suspension is automatic once a police officer believes someone is a drink driver (i.e. either for failing or refusing a breath test) and the tribunal’s sole function is to check the officer’s belief. No-one does or is even permitted to make any assessment at all about the actual danger posed by the driver retaining his or her licence.]
  • She claims that this HKCA case held that the HK presumption of innocence ‘has no application to an order of the Commissioner of Police to withold a portion of the pay of a police officer who had been charged with fraud.’ But this wasn’t a ruling about the scope of the HK presumption (which has the same text as Charter s.25(1)). The Court expressly held that the presumption would be breached by a witholding of pay that  was based on an assumption of guilt. But, in this case, the complainant had already been suspended from duty (an action he didn’t challenge) and the obvious purpose for docking his pay was because he was currently doing nothing. Interestingly, he didnt lose all his pay and, if he’d been acquitted, he was entitled to all his witheld back pay. Sabet is not so fortunate. (A  minor issue: Hollingworth fails to notice that the HKCA case was appealed to the Final Appellate Court, which ruled similarly in July this year.)

Hollingworth’s shoddiest treatment was reserved for the jurisprudence of the European Court of Human Rights, which Sabet  relied upon and where the application of the presumption of innocence in non-criminal settings is most developed (as I discussed earlier):

  • She claimed that this ECtHR case held that a ‘disciplinary board’s consideration of [a doctor’s] past criminal records violated the presumption’ of innocence. In fact, the court rejected the doctor’s claims in relation to those records and, in particular, his claim based on the presumption of innocence, because the records were relied on only to fix the sanction after the board found that the claim against the doctor was established  (It did, however, uphold a completely unrelated complaint that the hearing wasn’t held in public.)
  • She claimed that this EComHR case held that the presumption ‘does not apply in disciplinary proceedings, which did not determine a criminal charge, and where suspension was imposed as a protective measure’. This is accurate, but very imprecise, because the Commission went on to specify that the ‘disciplinary’ hearing involved no findings whatsoever about the complainant’s guilt of the charges (or even the ‘probability of guilt.’) The case is scarcely about discipline: the ‘job’ the complainant was suspended from was his place in the ‘list’ of expert graphologists for the very court that was trying him (on mafia-related charges!) He could scarcely continue to work for his prosecutor.
  • She claimed that this ECtHR case held that ‘the presumption had no application in a disciplinary hearing against a police officer’ (for the most part.) But she fails to note that the ruling was primarily based on the fact that the complainant was a public servant, which meant (according to this earlier ruling) that his employment conditions fell completely outside the right to a fair hearing (which is what the complainant was relying upon, not his express right to be presumed innocent.) So, the case is really about public servants and their employment disputes, rather than a general ruling about disciplinary proceedings. (Also, the ECtHR only made these comments in passing, as the complainant’s complaint about his dismissal as a police officer was inadmissible because he hadn’t exhausted domestic remedies.)

Hollingworth declared that the European cases are ‘not always easy to reconcile’. Well, it’s a lot easier if you actually read them! She fortified her disparagement of the ECtHR juriprudence by quoting a UK House of Lords case where she said that the Lords ‘recognised that the European law in this area is “not altogether straightforward”‘. But that case had nothing whatsoever to do with the presumption of innocence – it was about secret evidence – and the European law at issue was about the distinction between civil and criminal proceedings (which can be important for the right to a fair hearing, because European jurisprudence accepts that fairness means something different in criminal and civil matters.)

For what it’s worth, here’s Hollingworth’s conclusion:

None of the international provisions is identical to s 25 and there is no single, consistent approach taken in the international decisions as to the applicability of the presumption outside criminal proceedings. The European position is the most confusing, and the European legislation is the least like the Charter (in that the presumption of innocence is included within an article which explicitly deals with both civil and criminal proceedings). Each of the international provisions appears in the context of a charter or convention which has some features which resemble, and some which differ from, the Charter.

It’s not the European jurisprudence that’s confusing; it’s just Hollingworth who’s confused by (not reading) it.

Moreover, her claim that the European ‘legislation’ is least like the Charter (just because it combines the text of Charter ss. 24 & 25 into a single article) is flabbergasting. The Charter is expressly an adoption of the ICCPR rights, which do exactly the same thing.  Indeed, the European Convention is actually closer to Charter s.25 than the ICPPR, because both  the presumption of innocence and minimum guarantee wings of of the European fair hearing right open with ‘Everyone charged with a criminal offence’ (just like Victoria’s) whereas the ICCPR’s minimum guarantee wing uses the NZ-style ‘in the determination of a criminal charge’ language. When you look through all the different texts of the presumption and surrounding rights (which are helpfully set out in the appendix to the judgment), you’ll see that the European ‘legislation’ is actually most like the Charter’s on this particular issue!

Hollingworth’s cavalier treatment of the work of the European Court of Human Rights strikes me as entirely contrary to the spirit of Charter s. 32(2):

32(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

This section is intended to encourage Victorian judges to take advantage of the good work of jurisdictions that have had human rights laws for much longer than Victoria. By contrast, Hollingworth’s judgment shows contempt for the work of ‘foreign’ courts like the ECtHR.

I understand that everyone can make mistakes – and doubtless I’ve made many – but to misdescribe so many cases in one judgment is appalling. If this is the best that Victorian judges can do when it comes to comparative law, then Charter s. 32(2) needs to be urgently repealed. The only saving grace in all of this is that Hollingworth ultimately didn’t (or at least said she didn’t) reach a decision about the scope of Charter s. 25(1), instead deciding against Sabet on another basis. I guess that’s bad luck for Sabet, because if the above analysis of Charter s. 25(1) had been the basis for her decision, then Sabet would have a very easy time in the Court of Appeal. He, and all Victorians, deserve better.

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