Sunday 28 April 2013

Guidelines and Assisted Suicide

The Irish Supreme Court will shortly deliver its judgment on litigation commenced against the State by Marie Fleming. Ms. Fleming is terminally ill with multiple sclerosis. She has asked the courts to declare unconstitutional Ireland's prohibition on physician-assisted suicide.

At first instance, a very strong three-judge High Court (Kearns P., Carney and Hogan JJ.) upheld the challenged provisions of the Criminal Law (Suicide) Act 1993: Fleming v. Ireland, 2013 IEHC 2. I want to focus on one component of the judgment: the conclusion that the Act was a limit "in accordance with the law" within the meaning of the European Convention on Human Rights. I think the High Court's conclusion on this point is unsustainable (indeed, quite odd) and hope the Supreme Court reverses course.

Section 2(2) of the Act sets out the offence of assisting suicide, but according to s. 2(4), prosecutions can only be brought "by or with the consent of the Director of Public Prosecutions". Relying on the decision of the House of Lords (indeed, the last decision ever rendered by that body) in Purdy v. Director of Public Prosecutions, 2009 UKHL 45, counsel for Ms. Fleming argued that the Director of Public Prosecutions was obliged to develop a "code of conduct" which would give guidance to individuals on how the prosecutorial discretion provided for by s. 2(4) would be exercised.

The starting point here is Article 8(1) of the Convention, which guarantees the right to private and family life. This has been interpreted expansively. As the European Court of Human Rights explained in Haas v. Switzerland (2011), 53 EHRR 33:
51.  [A]n individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.
As the High Court observed, however, the European Court of Human Rights has consistently upheld prohibitions on assisted suicide as reasonable limits under Article 8(2). The High Court reached a similar conclusion in respect of the Irish Constitution. Section 2(2) of the Act -- the provision that sets out the offence of assisted suicide -- was thus constitutional and Convention-compliant.

The problem, however, is the discretion vested in the Director of Public Prosecutions by s. 2(4) of the Act. Discretionary powers can amount to limitations "in accordance with the law" for the purposes of Article 8(2), but only in some circumstances. A test of foreseeability and accessibility must be imposed, as Lord Hope of Craighead explained in Purdy:
[41] ...[Article 8(2)] implies qualitative requirements, including those of accessibility and foreseeability. Accessibility means that an individual must know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it what acts and omissions will make him criminally liable. The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary...(citations omitted, emphasis added).
In Purdy, the House of Lords held that the Director of Public Prosecutions' general guidelines for the exercise of prosecutorial discretion were insufficient. A new set of guidelines was required to bring the Director of Public Prosecutions into compliance with the Convention.

The High Court wriggled out of Purdy in unconvincing fashion. It noted that, in the UK, the Director of Public Prosecutions was required by statute to issue general guidelines to prosecutors. No equivalent provision had been enacted in Ireland.

With respect, this is rather beside the point. First, the question in Purdy was whether s. 2(4) constituted a limitation "in accordance with the law". In Fleming, the question is the same. Whatever about the prohibition in s. 2(2), the power to choose not to prosecute is problematic. An individual who wishes to help a terminally ill individual end his or her life has no access to the principles which will guide the Director of Public Prosecutions' discretion to bring criminal charges.

Second, public bodies have an inherent power to issue guidelines which will regulate their exercise of discretion. The Director of Public Prosecutions is no different. Indeed, general guidelines to prosecutors have already been issued! As the High Court sheepishly acknowledged, their logic suggests that the Director of Public Prosecutions has no power at all to issue guidelines (at para. 167); presumably, the existing guidelines are unlawful. This conclusion surely cannot stand.

The High Court mustered two other flawed arguments in support of its position. One was based on the means of incorporation into Irish law of the Convention. Unlike in the UK, where s. 6 of the Human Rights Act, 1998 imposes an obligation on all public authorities to act in a Convention-compliant manner, the Irish legislation only requires Convention compliance by public bodies in the exercise of their "functions". According to the High Court, there were no "functions" at issue because the Director of Public Prosecutions had no authority to issue guidelines. But this runs into a serious objection: exercising discretion to prosecute or not under s. 2(4) is as plain an example of a statutory function as one will find. And if one disagrees with the High Court's conclusion that the Director of Public Prosecutions has no power to issue guidelines, the Convention argument is weaker still: at the moment, the Director of Public Prosecutions is not only exercising discretion under s. 2(4), but doing so by reference to guidelines. There is an air of unreality about the conclusion that this arrangement cannot be brought into line with the Convention.

The other argument was based on the Irish Constitution. Article 15 vests legislative power in the Oireachtas (Houses of Parliament). Power can be delegated to public bodies, but only if principles and policies are set out in the legislation. The High Court held that requiring the Director of Public Prosecutions to issue guidelines would breach Article 15 by undermining the law-making authority of the Oireachtas:

166. It seems clear to this Court that the effect of any direction requiring the Director to issue guidelines of the kind now sought by the plaintiff would infringe these basic constitutional principles. While the plaintiff asserts that she is seeking no more than a statement of factors which would influence the decision of the Director whether or not to prosecute, the reality of course is that, for her own very good reasons, she wishes to know that the Director will not in fact prosecute in her case. Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’...Once guidelines may be characterised as having the effect of outruling a prosecution, they must be seen as altering the existing law and must therefore fall foul of Article 15.2 of the Constitution...
But if this is correct, the next logical step is to declare the grant of discretion in s. 2(4) to be unconstitutional because it does not contain the requisite principles and policies. Here lies the fatal flaw in this argument: it simply cannot be less democratic to have the Director of Public Prosecutions decide on a case-by-case basis, with no information about the reasoning process made public, than to have a set of guidelines which would be available to all and the subject of public debate and comment. The offence to democracy lies in the unbounded discretion of the Director of Public Prosecutions. If anything, requiring guidelines would be more democratic.

The oddity of this position is underscored by two other points the High Court made. They suggested that the Director of Public Prosecutions, in exercising discretion under s. 2(4), should have regard to the guidelines issued in the UK (at para. 171). Pause for a moment to consider how strange this conclusion is. The High Court held that it would be undemocratic for the Irish Director of Public Prosecutions to issue guidelines, but is entirely comfortable with reliance on guidelines developed in another jurisdiction. Worse, the High Court also suggested (at para. 172) that regard could be had to the relevant factors identified by Smith J. in Carter v. Canada (Attorney General), 2012 BCSC 886. One might reasonably ask what democratic mandate the Irish people had accorded to her honour.

In short, requiring guidelines would be unlawful and undemocratic. However, case-by-case exercises of discretion would not be; exercises of discretion by reference to factors developed by an administrative decision-maker in another jurisdiction would not be; and factors developed by a foreign judge would not be. This conclusion is very odd and I trust the Supreme Court will not sustain it.

UPDATE: Well, the Supreme Court has refused the appeal. The guidelines aspect of the High Court judgment was apparently not appealed. Having pondered this a little, I suspect that Ms. Fleming may have got as much as she could have hoped for from the High Court judgment. Successfully appealing would have required the Director of Public Prosecutions to spend a significant amount of time developing guidelines, time that Ms. Fleming may not have. And unsuccessfully appealing might have meant the Supreme Court shutting off the avenues that the High Court left open: reference to guidelines in other jurisdictions, for example.

Friday 26 April 2013

Procedural Fairness for Office Holders -- Again -- in New Brunswick -- Again

In most jurisdictions, courts have had difficulty in calibrating the appropriate procedures for public office-holders. It is easy to understand why: employment -- and dismissal -- by public bodies is bound up with statute and thus presents questions that are amenable to judicial review. However, many public employees also benefit from contractual protections, just like private employees -- why, then, should they benefit from greater protection?

The Supreme Court of Canada's response to this question in Dunsmuir v. New Brunswick, 2008 SCC 9, was to focus on the existence of an employment contract: "where a dismissal decision is properly within the public authority’s powers and is taken pursuant to a contract of employment, there is no compelling public law purpose for imposing a duty of fairness" (at para. 106). Subsequently, in Canada (Attorney General) v. Mavi, 2011 SCC 30, the Court characterized Dunsmuir as creating a "rather narrow Dunsmuir employment contract exception from the obligation of procedural fairness" (at para. 51).

Thursday 25 April 2013

Reasonableness, Reasons and Reasoning by Incorporation

In Canada Post Corporation v. Canadian Union of Postal Workers, 2013 BCCA 108, the applicant employer had been accused of using regional forums where management would address employees in order to undermine the respondent union.

Here is an excerpt from one of the addresses:
I have had unbelievable support from you since I’ve been at the company. I know what I say does not meet the agreement of everybody. We’re a big place. We’ve got 72,000 full and part-time people, and we’ve got a lot [of] history and a lot of heavy culture that we’ve got to kind of get over. But I see we are getting over it. We’re having discussions like this about what it takes to be successful. We’re making the changes that are necessary. We’re not focused as much on the petty grievance mentality that’s seen to be the basis of everything in Canada Post four years ago.
Read one way, the quoted passage suggests "management good, union bad". The union complained, charging a violation of s. 94(1) of the Canada Labour Code on the basis that the employer had "interfere[d] with the formation or administration of a trade union or the representation of employees by a trade union".

The arbitrator found in favour of the union and imposed sanctions. At first instance, the award was quashed as unreasonable, but the British Columbia Court of Appeal allowed an appeal by the union.

One interesting aspect is that the same arbitrator had previously decided a similar dispute between the parties, as had another arbitrator. His reasons in the present case referenced heavily those reasons. Bennett J. concluded that this sort of reasoning by incorporation was permissible: "[the] reasons in the instant case, when viewed in light of previous arbitral decisions, exhibit the requisite transparency and justification customary with the reasonableness standard" (at para. 65, emphasis added). This is of a piece with the Supreme Court of Canada's decision in Alberta Teachers, where the Court relied on previous decisions of the Information and Privacy Commissioner to uphold the conclusions under review.

All in all, the arbitrator's conclusion in the instant case was reasonable:
[70]        As stated above, it seems to me that the arbitrator’s award clearly delineated what was the matter with the forums: management communications that went beyond merely an informational or factual exchange and had the effect of interfering with the Union’s representation of its members on issues of workplace conditions and benefits. This was particularly so in light of the approaching negotiations. When one reads the reasons of the arbitrator as a whole, it is clear that regional forums per se are not impermissible. Rather, management may hold such forums, but only to the extent that they do not encroach on the Union’s right to exclusive representation on matters such as benefits and working conditions.
Bennett J. also commented more generally on the Supreme Court of Canada's decision in Newfoundland Nurses, now the leading authority on the relationship between reasons and reasonableness. Applied to the present case, it supported Bennett J.'s decision to uphold the arbitrator's award as reasonable:
[73]        Furthermore, it is clear that [the first-instance judge's] analysis cannot stand in light of Labrador Nurses Union. In that decision, the Court stressed that reasonableness requires that the conclusions be supported in fact or in principle. Even if the reasons are not wholly adequate to support every aspect of the conclusion, a reviewing court has an obligation to support the reasons – not subvert them. The law does not require reasons to be perfect.
[74]        In this way, the fact that the arbitrator did not refer to s. 94(2)(c) of the Code specifically does not impugn the validity of his decision. The Supreme Court of Canada is clear that a failure to reference and connect every constituent principle in the reasons is insufficient to attack the decision of an administrative tribunal. It cannot be said that the arbitrator did not consider the evidence and s. 94 in their entirety and arrived at an unreasonable outcome. The outcome arrived at in this case was available to him on the basis of s. 94(1) and the Agreement. He referred to s. 94 in the order. He was clearly alive to the issue before him, and failure to reference s. 94(2)(c) does not mean he failed to consider it.
I agree with Bennett J.'s ultimate conclusion, although I think she might have drawn a closer link to Alberta Teachers. This sort of approach, with its openness to reasoning by incorporation, makes it very tough to challenge arbitral decisions under Newfoundland Nurses.

Consider also the following passage from Pathmanathan v. Canada (Citizenship and Immigration), 2013 FC 353:
[28]           Newfoundland Nurses does not authorize a court to rewrite the decision which was based on erroneous reasoning.  The reviewing court may look to the record in assessing whether a decision is reasonable and a reviewing court may fill in gaps or inferences reasonably arising and supported by the record.  Newfoundland Nurses is a case about the standard of review.  It is not an invitation to the supervising court to re-cast the reasons given, to change the factual foundation on which it is based, or to speculate as to what the outcome would have been had the decision maker properly assessed the evidence.
Bennett J.A. was not rewriting the arbitrator's reasons, just reading them fairly. It might be difficult to identify quite what fairly requires in different cases, however. Such is life for judges reviewing the substance of administrative decisions. 

Friday 19 April 2013

Wednesday 17 April 2013

A Fresh Start on the UK Supreme Court?

There is little to add to Dr. Mark Elliott's excellent post on today's UKSC decision in Jones v. First Tier Tribunal, [2013] UKSC 19. As Mark notes in his comprehensive and thoughtful entry, Lord Carnwath was refreshingly honest about the role that the distinction between law and fact plays in allowing judges to allocate decision-making between courts and administrative bodies. 

Tuesday 9 April 2013

Administrative Decision-makers and the Ordinary Courts

What happens when administrative decisions, or decision-making processes, come into contact with the ordinary civil process? I will discuss two important recent Canadian decisions in this post: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (Supreme Court of Canada), and Guay c. Gesca ltée, 2013 QCCA 343 (Quebec Court of Appeal). In a separate post I will address whether Penner is inconsistent -- as the dissenters in that case allege -- with a previous decision of the Supreme Court of Canada, British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52.

Friday 5 April 2013

The "Rogers Exception": Some Recent Canadian Standard of Review Decisions

In my essay on deference and the copyright cases, I suggested that an innovation the Supreme Court of Canada made in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 would bedevil lower courts. Briefly, the exception suggests that where there is co-ordinate jurisdiction between courts and administrative decision-makers to interpret statutory provisions, the standard of review is automatically correctness. I previously noted an early example with some satisfaction.

In recent weeks, the Rogers exception has been the subject of judicial treatment on several occasions. However, it has not had any effect -- which, given that I described the innovation as "unfortunate", I am pleased to see.

Wednesday 3 April 2013

Regulatory Moneyball, Values and Cost-Benefit Analysis

Cass Sunstein has been whetting appetites for his new book, Simpler: the Future of Government (out April 9) by doling out tasty samples of its content (see e.g. here and here). One of these is an essay for Foreign Affairs, "Regulatory Moneyball". The title is borrowed from Michael Lewis' superb Moneyball: the Art of Winning in an Unfair Game, about Billy Beane's use of statistics to get the jump on baseball clubs who relied on hunches and instinct.

Deference on the SCOTUS

Much of the focus on the Supreme Court of the United States recently has been on the hot-button topic of same-sex marriage. But the Court has also released some interesting administrative law decisions in recent weeks.

The End of Auer Deference: Administrative Interpretations of Regulations
I previously posted some sceptical thoughts on the continuing applicability of so-called Auer deference, a doctrine. Pursuant to this doctrine, administrative decision-makers' interpretations of their own regulations are to be deferred to by courts unless plainly erroneous or inconsistent with the text of the regulation(s). I was pleased to see that, in Decker v. Northwest Environmental Defense Center, Justice Scalia called in a stirring opinion for Auer deference to be jettisoned. Here is a taste:
Congress cannot enlarge its own power through Chevron — whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way — the competing political branch — is the less congenial repository of the power as far as Congress is concerned.) So Congress's incentive is to speak as clearly as possible on the matters it regards as important. But when an agency interprets its own rules — that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a "flexibility" that will enable "clarification" with retroactive effect. "It is perfectly understandable" for an agency to "issue vague regulations" if doing so will "maximiz[e] agency power." Thomas Jefferson Univ., supra, at 525 (THOMAS, J., dissenting).
Here, Auer deference to the Environmental Protection Agency's interpretation of a regulation concerning storm-water run-off was decisive, Justice Scalia explaining persuasively why the regulation, read fairly, did not support the EPA's position. In a separate opinion, Chief Justice Roberts suggested that the Court would be open to argument on the continued vitality of Auer deference. Watch this space.

Deference as Respect
Another interesting recent American case is Wos v. E.M.A. Here, the minority opinion of interest is that of Justice Breyer. Without knowing it, I think Justice Breyer expressed very well the concept of "deference as respect" developed by David Dyzenhaus in a 1997 essay (and consistently misapplied by the Supreme Court of Canada and other Canadian courts).

Dyzenhaus' core idea is that interpretations of law by administrative decision-makers change the interpretive landscape and must as a result influence any interpretation arrived at by a court, the judicial role being to identify the reasons that best justify a given decision. There are surely echoes of this in the following passage from Justice Breyer's opinion:
Thus, even though this case does not fall directly within a case-defined category, such as "Chevron deference," "Skidmore deference," "Beth Israel deference," "Seminole Rock deference," or deference as defined by some other case, I believe the agency, in taking a position, nonetheless retains some small but special "power to persuade." And I would consequently to some degree take account of, and respect, the agency's judgment.
I cannot measure the degree of deference with the precision of a mariner measuring a degree of latitude. But it is still worth noting that the agency's determination has played some role in my own decision. That is because the agency, after looking into the matter more thoroughly (perhaps after notice-and-comment rulemaking), might change its mind. Given the nature of the question and of the agency's expertise, courts, I believe, should then give weight to that new and different agency decision. In my view, today's decision does not freeze the Court's present interpretation of the statute permanently into law. (My emphasis, citations omitted.)
Justice Breyer's explanation of why the position of the agencies administering the relevant statutes was not entitled to deference is also illuminating:
Here, however, the agency did not engage in rulemaking procedures, it did not carefully consider differing points of view of those affected, it did not set forth its views in a manual intended for widespread use, nor has it in any other way announced an interpretation that Congress would have "intended ... to carry the force of law." United States v. Mead Corp., 533 U.S. 218 , 221 (2001). Indeed, the agency does not claim that it exercised any delegated legislative power.
It is interesting to note the importance in this passage of (a) the application of expertise, (b) participation in the decision-making process, and (c) the extent of the delegation of authority to the agency. These are vital considerations in determining whether curial deference should be accorded, as I explain at length in chapters 2 and 3 of A Theory of Deference in Administrative Law.