The new case from the Mental Health Review Board raises a difficult question about the retrospective operation of the Charter. The respondent wished to bring the Charter’s interpretation mandate to bear on the question of whether the MHRB’s failure to review the extension of his community treatment order in 2007 meant that the order became invalid. The problem is that the interpretation mandate didn’t exist at the time:
2(2) Divisions 3 and 4 of Part 3 come into operation on 1 January 2008.
For a change, this question isn’t a matter of applying the Charter’s transitional provision:
49(1) This Charter extends and applies to all Acts, whether passed before or after the commencement of Part 2, and to all subordinate instruments, whether made before or after that commencement
(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.
(3) Division 4 of Part 3 does not apply to any act or decision made by a public authority before the commencement of that Division.
While it might be argued that the MHRB matter in some respects commenced in 2005 – when the respondent was first made the subject of an involuntary treatment order – or 2006 – when his CTO was first reviewed by the MHRB, everyone in this matter seems to have assumed that the proceeding either commenced in 2007 – when the contentious CTO extension made made and not reviewed – or 2008, when the MHRB belatedly decided to review the matter, thus keeping it free from the dreaded Charter s. 49(2). Charter s. 49(3) bars the operation of the conduct mandate (at least until 1/1/8) but not the interpretation mandate. And Charter s. 49(1) – which appears to cover the interpretation mandate – speaks only to the statutes it covers, rather than the conduct that might be affected by any re-interpretation.
So, can Charter s. 32 have any effect on matters before 1/1/8? The MHRB, adopting the argument of the Attorney-General (who is making a habit of this sort of Charter-shrinking stance) said ‘no’:
It is the decision of the legal member that s2(2) sets out the commencement date of the Charter, clearly indicating that the Charter rights come into effect from 1 January 2007, but that Divisions 3 and 4 of Part 3 come into operation from 1 January 2008…. Therefore, it is the decision of the legal member that the Board can only cover the impact of the Charter on and from 1 January 2007, and is unable to apply it, in any respect, to… its interpretative powers under s32 before that date.
And this is just bad law. Commencement provisions are not transitional provisions. Rather, they simply define what ‘retrospective’ means for a particular provision. Whether the provision applies retrospectively is a matter of statutory interpretation. And that’s a complex question indeed.
Without a doubt, the most pertinent and comprehensive discussion of the very question of the retrospective operation of a human rights interpretation mandate occurred earlier this decade in the UK, notably, in Wilson & Ors v. Secretary of State for Trade and Industry  UKHL 40. There, the House of Lords said of its interpretation mandate (s. 3 of the UKHRA), in observations that could be equally made of Charter s. 32:
On its face section 3 is of general application. So far as possible legislation must be read and given effect in a way compatible with the Convention rights. Section 3 is retrospective in the sense that, expressly, it applies to legislation whenever enacted. Thus section 3 may have the effect of changing the interpretation and effect of legislation already in force. An interpretation appropriate before the Act came into force may have to be reconsidered and revised in post-Act proceedings. This effect of section 3(1) is implicit in section 3(2)(a) [which is similar to Charter ss. 49(1) & 32(3)] So much is clear.
Considerable difficulties, however, might arise if the new interpretation of legislation, consequent on an application of section 3, were always to apply to pre-Act events. It would mean that parties’ rights under existing legislation in respect of a transaction completed before the Act came into force could be changed overnight, to the benefit of one party and the prejudice of the other. This change, moreover, would operate capriciously, with the outcome depending on whether the parties’ rights were determined by a court before or after 2 October 2000. The outcome in one case involving pre-Act happenings could differ from the outcome in another comparable case depending solely on when the cases were heard by a court. Parliament cannot have intended section 3(1) should operate in this unfair and arbitrary fashion.
The answer to this difficulty lies in the principle underlying the presumption against retrospective operation and the similar but rather narrower presumption against interference with vested interests. These are established presumptions but they are vague and imprecise.
The key point is that the House of Lords recognised (and the MHRB failed to recognise) that the presumption against retrospectivity is not a blanket rule but rather a rule to achieve a nuanced (or vague) purpose. Where that purpose – of preventing unfairness to people when the rules are suddenly changed -isn’t served (Lord Nicholls gave the significant example of post-commencement criminal prosecutions in relation to pre-commencement conduct where the rules shift in favour of the defendant), then retrospectivity is fine. The major sticking point is where legal rights have already ‘vested’ before the rules changed. This is what occurred in Wilson, where Ms Wilson got the benefit of a consumer protection law that voided a dodgy loan she signed purely because the lender had filled in the form wrong, leaving her with a free car and no debt; it would have been wrong, the Lords held, to re-interpret the law as having a less draconian impact on the lender’s contract, as that would have disturbed her rights under that law, which vested the moment the contract (briefly) came into existence.
By contrast, in the MHRB case, there are no vested rights or interests. The CTO was either valid or it wasn’t; it would be bizarre for the MHRB or the psychiatrist to say that they had a vested interest in that. Notably, the respondent was suing the MHRB or his psychiatrist for their conduct in making him take medicine for the last couple of years; he just wants out of his CTO now.
In fact, I think the House of Lords approach is so sensible that I’ve recently argued in the July LIJ that Charter s. 49(2) – which woefully excludes the Charter from proceedings started before 2007, not only retrospectively but prospectively – ought to be re-interpreted in light of Charter s. 32 so that it only excludes that operation in the circumstances set out by the House of Lords in Wilson. (More on that argument another time.) The silliness of the MHRB’s (and Attorney-General’s) approach is that it would exclude the retrospective operation of the Charter even in cases where Charter s. 49(2) doesn’t apply, effectively confining the impact of Charter s. 49(2) to its indefensible prospective effect. Crazy.
I’d argue the exact opposite: in situations not covered by Charter s. 49(2) – that is, in proceedings commenced after 1/1/7 – the interpretation mandate should be fully operational to all events dealt with in the proceedings, no matter when they occurred. Here’s why: Continue reading