The government’s Charter dodge

When I sat in on the hearing that led to R J E v Secretary to the Department of Justice [2008] VSCA 265, one point had me quite confused:

What I don’t get here is that all the arguments were about the mandatory bits of the ESO scheme. But an ESO also exposes you to the discretion of the Adult Parole Board, which can order stuff like mandatory medical treatment, having to ‘reside’ at Ararat Prison, who you can associate with, whether you can use the net, etc. There are plenty of rights limitations there. The Board, of course, isn’t bound by the Charter. So why don’t ESOs engage all those rights? It’s not clear that that’s what the sex offenders are arguing, though. Strange.

Victoria’s SSOMA, in this way, as in so many others, just like New Zealand’s scheme, has two sections specifying the consequences of an extended supervision order. Section 15 sets out some mandatory conditions that apply to all ESOs, ranging from the silly – not committing an offence – to the mundane – reporting a change of name or employment – and the intrusive – not moving address or leaving Victoria without prior permission. But it also includes these three conditions:

(g) obey all lawful instructions and directions of the Secretary given under section 16(1);

(h) obey all lawful instructions and directions of the Adult Parole Board given under section 16(2).

Section 16 provides that these two entities can give any instruction or direction considered ‘necessary’, respectively, to administer and ‘to achieve the purposes of the conditions’ of the ESO. The remainder of the section then sets out examples of what the Parole Board can do, including imposing curfews, banning the subject from particular job,  activities or people, requiring attendance at treatment programmes and the wearing of electronic bracelets, and, most dramatically, telling the offender where he may ‘reside’ (which, the SSOMA now explicitly states, may include the grounds of a prison.) 

In his judgment, Nettle solved the mystery of why Tate nevertheless only addressed the compatibility of s15 with the Charter (notably freedom of movement) and not the far more dramatic provisions of s16:

Counsel for the respondent and counsel for the Attorney submitted that, although it is open to the Secretary or Parole Board to impose onerous restrictions on an offender under ss 15 and 16, when it comes to the interpretation of s 11 the court should presume that the Secretary and Parole Board will act lawfully, and so in accordance with the Charter; and, therefore, that such orders and directions as the Secretary or Parole Board might give would never go further in restricting the rights of an offender than would be demonstrably justifiable according to the criteria delineated in s 7 of the Charter.

My year of blogging the Charter has been an exercise in steadily increasing cynicism and lowering expectations. And yet, even in late December, the government’s lawyers can still manage to make my jaw drop. (And, note that, yet again, the government party to the proceeding – represented by Tate – and the Attorney-General intervening under Charter s. 34 – represented by Davidson – are marking precisely the same submissions, as always aimed at preventing the application of the Charter. What is gained by giving the Attorney a right of intervention in these cases, other than allowing the government the benefit of two voices speaking in unison at the table? )

The government’s submission is its most extreme attempt this year to mininise any possibility of the Charter ever being applied. Under the guise of a stunningly broad reading of the interpretation mandate, its effect, if a court is foolish enough to accept it, would be to prevent the Charter’s interpretation mandate and declarations power from ever being applied to a statute that gave any person or entity a discretionary power to limit someone’s rights. Needless to say, that category covers the vast majority of occasions when rights are limited in Victoria. Moreover, it would also cover a future law that, say, gave a member of the executive a discretion to torture someone, or apply the death penalty, or to force them to convert to Christianity. The terms and prupose of such a law, the government would claim – in court, in public, in a statement of compatibility – is still compatible with the Charter because its discretions will be interpreted as only permitting those actions when they are reasonable under Charter s. 7(2).

It might seem like this argument has a significant pro-human-rights element, because it carries the corollary that all discretionary power conferred by a statute is limited within the confines of Charter s. 7(2). But this apparent generosity is really a cynical move that will replace the general remedies in the Charter’s scrutiny, interpretation and declaration regimes against overly broad statutory discretions with a case-by-case remedy that is afforded by a judicial review action (or, where applicable, a Charter s. 39(1) action), which must be litigated each and every time a government body acts. As well, because the government’s approach is couched in terms of Charter s. 7(2), each instance of litigation will have to be framed in terms of a’reasonable limits’ argument about the particular act in question. As I’ve observed many times in this blog, Charter s. 7(2) assessments of particular conduct have an inherent tendency to be  self-affirming smug exercises in human rights box-ticking. The government’s argument, if accepted, would replace any chance of a human rights culture with an almost completely non-accountable process of lip service.

The Adult Parole Board’s power under the SSOMA is, of course, a case in point. Offenders subject to an ESO will typically lack the time, temperament, resources and energy to go to the Supreme Court every time a condition is added to an ESO. Moreover, the Parole Board is  itself largely impervious to legal remedies, with only a weak form of judicial review covering its most egregious overreaches. Further, it has been exempted from the conduct mandate (in the unlikely event the Charter s. 39(1) would allow any remedies to be sought against the parole board.)  And, then there’s Charter s. 7(2). Consider this argument that the government advanced to press its claim that s. 16, despite its theoretical draconian nature, is actually entirely reasonable in practice:

Reference was made to material put before the court as to the orders and directions which have been given in this case, and it was submitted that it was open to the court to take that into account as evidence of the way in which the Act operates in fact and thus as legislative facts which may assist in the interpretation of the legislation.

Nettle didn’t provide any details about this, but how could any ‘material possibly establish the reasonableness of every one of the conditions attached to every ESO? And how could the parties opposing the government in this case possibly take issue with this assessment during a three-day hearing? I have little doubt that this ‘material’ was nothing but a self-serving analysis by the parole board of how the SSOMA has been applied to keep kids safe, doubtless based on the same expert assessments that founded the original orders? (And can any claim about the Adult Parole Board’s reasonableness in keeping within its powers stand against the history of the Board acting ultra vires in requiring ESO subjects to ‘reside in the community’ at Ararat Prison?)

According to Nettle, the government’s argument that the interpretation mandate magically turns draconian statutory powers into reasonableness-compliant discretions rested on three casest. One, a Canadian decision on Quebec’s language rules, was apparently relied on to back up the government’s above argument that an Act’s reasonableness can be assessed by how it ‘operates in fact’. But the facts relied on in the Canadian case were about regulations, i.e. other laws, not decisions and, anyway, that evidence was rejected an incapable of sustaining a reasonable limits argument. Nettle implied that the government didn’t press this case much. The second case was Kay, a UK decision I’ved previously covered in this blog, where the House of Lords announced that courts adjudicating tenancy matters don’t have to assess each and every decision by a landlord for rights compatibility, but rather assume that the governing statutes will keep the landlords in line. Nettle dismissed that case as about procedure, but there’s a bigger problem with it.  As I covered previously, Kay is really an instance of the UK courts upholding the parliament’s prerogative to legislate incompatibly with decisions of the European Court on Human Rights. Indeed, as I explained, this year, the House of Lords, following another ECtHR rebuff, made an explicit finding that the UK’s interpretation mandate could not be stretched to read reasonableness limitations into a broad statutory power. Are these examples really the best the government could come up with?

Well, it turns out that the government’s third case is much more on point.  Slaight Communications Inc v Davidson is a fascinating case from the early years of Canada’s Charter involving an industrial relations adjudicator who ordered an employer to provide a reference about a dismissed employee and to refer any inquiries to the terms of the letter. Not only did this raise some interesting free speech issues, but also, because the adjudicator was acting pursuant to a quite vague statute, it also raised the very relevant question of whether a compatibility assessment should focus on the statute or on the adjudicator’s decision. The Court held that it should focus on the decision (which the majority held satisfied the reasonable limits test.) That obviously fits the government’s argument before the Victorian Court of Appeal, but Canada’s Charter is, of course, a very different beast to Victoria’s.  According to Nettle, the government’s argument that the Canadian approach was applicable here  rested on the analysis of Lamer J (who dissented, but whose analysis was expressly endorsed by the majority.) The crucial passage is this one:

The fact that the Charter applies to the order made by the adjudicator in the case at bar is not, in my opinion, open to question. The adjudicator is a statutory creature: he is appointed pursuant to a legislative provision and derives all his powers from the statute. As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed.

Now, the last two-thirds of this passage are obviously very helpful to the government, especially that last sentence, which Nettle emphasised. However, interestingly, Nettle’s extract omitted the first third altogether, instead coming in mid-way through the third sentence with the words ‘[I]it is impossible’. I wonder if that cribbed version of the quote was supplied by the government?

The reason the first third is significant is because it reveals that the interpretative task that Lamer was engaged in was premised on features of Canada’s Charter that are missing in Victoria: first, Canada’s Charter is a supreme law, so an incompatible law will be ultra vires; and, second, Canada’s Charter is self-applying, so any government conduct that breaches it is automatically afforded a remedy. These characteristics make legislative incompatibility a much more dramatic event in Canada than in Victoria – creating a legal vacuum, as opposed to a political debate – and conduct incompatibility a much more easily remediable event in Canada than Victoria (where the obligations mandate is hedged by a narrow scope, broad defences and limited remedies.) These differences make Canada’s context an excellent context for the kind of broad all-purpose remedial interpretation power the Victorian government favours, but make Victoria a terrible context. While both Charters are said to be based on a dialogue model, they aren’t the same model. Something that faciliates one model can be fatal to another.

It’s for all these reasons – not to mention the textual features of Charter s. 32, like ‘interpreted’ and the purposive limitation – that I’ve consistently argued in this blog that the Charter’s interpretation mandate isn’t and should be a magic cure-all for overly broad legislation. If the government’s approach was accepted, then there would be no incentive for drafters to draft legislation appropriately narrowly nor for parliament to insist on appropriate narrowness. The government would never have to fear a declaration of incompatibility or even an express reading down of the key terms of a statute (such as ‘likely’ in the SSOMA.) And, unlike in Canada, there’d be very little risk that particular government decisions will be successfully narrowed either. It’s for these exact same reasons that the government argued the contrary here (and, presumably, will continue to insist that Charter s. 32 is extremely broad when it comes to statutory powers.)

Nettle, at least, didn’t fall for any of this, although his rejection was specific to the context of the SSOMA. He argued: (1) that even SSOMA’s mandatory conditions were rights-incompatible if the ‘likely’ threshold was too low; (2) that SSOMA, by splitting ESOs into two stages, a threshold ‘likelihood’ test for orders and a subsequent ‘necessity’ test for discretionary conditions, isn’t amenable to the kind of blanket reading down for reasonableness that the government favoured; indeed, it reads more like the government intended the main rights balancing to occur at the order stage; and (3) that the government’s argument sits poorly with the Attorney-General’s decision to exempt the Parole Board from the Charter. On that latter argument, while I am pleased to see the government’s cravenness coming back to bite it – something I predicted – I think it’s incorrect to use the government’s decisions in 2007 and 2008 to interpret the applicability of a 2006 statute (the Charter) to a 2005 one (the SSOMA.) The correct argument is a broader one: that the government’s argument sits poorly with the presence of Charter s. 38. If the government is right, then the conduct mandate has little to do in contexts governed by a statute (and yet carries a defence for such contexts.)

Alas, between the majority’s Charter dodge and Nettle’s, there was no real opportunity for the court to give the government’s Charter dodge the careful consideration it deserved. The government’s argument should not have been tossed aside lightly (as Nettle did.) Rather, as Dorothy Parker would say, it should be thrown with great force. Instead, we should expect to see the evil thing float up repeatedly over the next couple of years.

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