Article Review/Response: Robert Leckey and Grant Hoole on Remedial Discretion

[Editor’s Note: In this installment of I•CONnect’s Article Review/Response Series, Grant Hoole reviews Robert Leckey’s recent article in I•CON on The Harms of Remedial Discretion. Leckey then responds to the review.]

Review of Robert Leckey’s “The Harms of Remedial Discretion”

—Grant Hoole, University of New South Wales

Robert Leckey has raised an important dissenting voice challenging the generally favourable treatment constitutional scholars have given to the rising use of prospective or delayed judicial declarations of invalidity in countries with entrenched bills of rights such as South Africa and Canada. These remedial measures were first introduced to Canadian jurisprudence under narrow circumstances in which the immediate invalidation of unconstitutional laws could inflict significant social harm. Expressly permitted under s 172 of the South African Constitution, they offered an important tool for the courts to safeguard against damaging gaps wrought by the large-scale invalidation of apartheid-era laws. In both Canada and South Africa, however, delayed and prospective declarations of invalidity now appear to reflect a deliberate attempt by the courts to remand responsibility to the legislatures to craft remedial cures for invalid legislation, based on assumptions about institutional competence and role-assignment under the separation of powers. Several scholars have cited these developments as positive examples of inter-institutional dialogue that should temper hostility to the judicial enforcement of rights. Leckey challenges this line of thinking on two fronts, noting its neglect of the harms of remedial discretion, and questioning whether remedial discretion truly signals a gentler, more deferential approach to the judicial enforcement of rights. Both criticisms are persuasive but incomplete.

Leckey’s article begins with a useful restatement of the commonwealth constitutional tradition that judicial declarations of constitutional invalidity should take effect immediately and retroactively: that is, any law which conflicts with the higher law of the Constitution is void from its inception by virtue of that conflict (4). Delayed declarations, in which the courts temporarily suspend the effect of a fully retroactive invalidation, and prospective declarations, in which the courts deny retroactive effect to legislative nullity, emerge as exceptions to this tradition. Leckey also rightly frames them as departures from a temporally immediate approach to rights-enforcement with strong democratic and textual foundations in both South Africa and Canada (9-10).

Leckey’s first line of attack concerns the harms, both individual and systemic, of remedial discretion. The most obvious harm is that suffered by the individual rights claimant who, having assumed the burden of litigation, is left with sustained violation of his or her rights until a delayed order takes effect (10). This situation is exacerbated by judicial reluctance, especially in the Canadian context, to deviate from the horizontal equality of rights-bearers by ordering immediate, interim relief to the individual claimant or to similarly situated persons (10-11). While these harms have been noted by other scholars, Leckey goes further in highlighting an overlooked implication of delayed remedial action: that temporary preservation of a violative regime can effect unpredictable and arbitrary distinctions among rights-bearers (12). This danger is especially acute when invalid criminal prohibitions are preserved. In these circumstances, uncertainty about the status of a temporary regime, and about what will replace it, risks provoking arbitrary distinctions in how criminally accused persons will respond to the threat of prosecution (in particular, whether they choose to combat charges during a period of suspended invalidity or to enter guilty pleas) (12). It may also provoke distinctions among those subject to the stigma of criminality – for example, in their willingness to disclose their activities by seeking protection from law enforcement officials or by availing themselves of other public services (12).

At the systemic level, Leckey suggests that the certainty engendered by prospective or delayed remedies – that a given regime will continue for a specified period – may be negated by uncertainty about how a temporary regime should be enforced (13-14). Focusing again on temporarily preserved criminal prohibitions, he notes that the police and prosecutors of different Canadian provinces have varied in their willingness to enforce temporarily suspended regimes (15). Not only does this result in further arbitrary distinctions among rights-bearers (this time on the basis of region), it undermines the rule of law value supposedly fostered by temporary preservation: that the law should be knowable to those whom it governs.

Leckey’s recognition that suspended invalidity effects its own, de facto interim regime marked by uncertainty and continued rights-violation underscores the most original and important element of his critique. He challenges the very notion that remedial discretion presents a gentler, more dialogic or facilitative approach to the judicial role. By assuming a power to preserve an unconstitutional state of affairs, Leckey suggests that courts may in fact be expanding their powers (17). Moreover, they may be doing so not based on fidelity to constitutional imperatives but for institutionally strategic reasons – that is, to insulate themselves against claims of activism by nominally deferring to the expertise and prerogatives of their legislative counterparts (19).

This is an important point. The crucial feature of the recent, expanded uses of suspended declarations is that the courts cite motivations of institutional role (deferring remedial decisions to parliament) more often than the public interest (protecting the rule of law and averting public harm) in justifying their discretion. By attacking the assumption that these remedies are truly deferential, Leckey subverts the principal basis for their expansion.

The flaw in Leckey’s thesis is that he doesn’t adequately differentiate its implications for remedial discretion motivated by inter-institutional deference as opposed to remedial discretion motivated by the apprehension of public harm. Toward the end of his article, Leckey recognizes that the apprehension of harm may justify remedial discretion in some circumstances, while cautioning that these occasions of necessity are not moments for celebration (28). He does not grapple with why concerns for public harm provide a normatively different basis for remedial discretion than concerns about institutional role. Institutional motivations for remedial discretion frequently depart from a sound interpretation of the separation of powers and diminish the supreme status of rights. Motivations based on averting harm are different because they can safeguard the same values pursued in enforcing rights – values like dignity, personal security, and the universal interest in governance by law. By not grappling with this distinction, Leckey’s suspicion of remedial discretion – especially in those cases of criminal prohibition which he considers most troubling – is left vulnerable to attack.

The Supreme Court of Canada’s Carter[1] and Bedford[2] decisions, which involved the use of suspended declarations in invalidating prohibitions against physician-assisted suicide and activities related to prostitution, respectively, are both cited by Leckey to illustrate of the harms of discretion. In each case, the Supreme Court paid scant attention to the harms that could be occasioned by immediate invalidity, basing its remedial discretion instead on the simple proposition that “it is for parliament”[3] to craft a remedial cure. Against this justification, Leckey’s critique is persuasive. But it is incomplete without addressing whether considerations of harm could or should have militated in favour of suspended declarations in both cases – that is, whether the Court is better criticized not for its choice of remedy, but for its choice of reasons. Both decisions engaged the clear possibility that immediate declarations of invalidity could have occasioned harm by legalizing exploitative and demeaning conduct at the same time as they vindicated the specific, rights-violative circumstances of the claimants. Accepting the harms of suspended declarations which Leckey identifies, one is left with the more analytically significant question of whether they outweigh the apprehended harms of immediate invalidity.

Leckey disavows the ambition of dramatically altering the course of the current jurisprudence or offering a new analytic to govern the use of remedial discretion (25). His aim is rather to highlight neglected dangers in the current approach and to consider how it may force us to alter our understanding of constitutional supremacy in South Africa and Canada. On the latter score, Leckey suggests that the status of entrenched rights may be shifting in comparison to structural provisions in the Canadian and South African Constitutions which continue to receive immediate enforcement when ordinary legislation contravenes them (26-27). In this sense, entrenched rights enjoy a lesser kind of supremacy than the other textual provisions of the Constitutions. This argument is most compelling when it is focused, again, on remedial discretion justified in reference to considerations of deference. It is less so when the motivating concern is the avoidance of public harm.

The use of suspended and prospective declarations is not confined to rights litigation. The first instance of such a remedy in Canada arose from the mass invalidation of provincial legislation for failing to adhere to bilingual manner-and-form requirements, producing a lacuna that threatened the rule of law.[4] The first South African suspended declaration concerned presidential decrees which  invalidly usurped legislative power, but which demanded preservation to facilitate the country’s first universal election.[5] A recent decision of the British Columbia Supreme Court employed a suspended declaration to prevent a legislative vacuum in striking down environmental legislation on federalism grounds.[6] In each case, the courts surmised that the harm occasioned by immediate invalidity outweighed the constitutional injury of preserving the regime. A focus on harm suggests the possibility for a unified approach to remedial discretion which treats rights and other constitutional provisions equivalently: both should receive presumptive immediate enforcement, except where apprehended public dangers outweigh the costs of temporary preservation.

In a 2011 article kindly cited by Leckey, I suggested that proportionality analysis should be employed to govern remedial discretion in the issuance of suspended declarations.[7] This argument was premised on the belief that the harsh effects of suspended declarations warrant justification on the same terms as the limitation of rights. After reading Leckey’s piece, I continue to believe in the merits of this approach, but am more firmly convinced that departure from immediate invalidity is harmful and requires strict confinement. Without wishing to attribute a position to Leckey, it would be a fair rejoinder for him to question whether proportionality analysis would adequately mitigate the dangers he identifies, including the expansive judicial role signalled even by structured remedial discretion.

Hopefully Leckey will expand on his current thesis to consider its implications for judicial practice. In an eloquent passage, Leckey offers the realist appraisal that a constitutional theory “inattentive to the details of remedies is a theory of fiction” (23). It would be fascinating for him to consider whether this position can be reconciled with reticence toward expansive judicial power in contexts other than suspended or prospective declarations – for example, with respect to the types of long-term oversight and structural remedies adopted to enforce access to education or humane conditions in prisons, as considered in the recent scholarship of Kent Roach.[8]

A final, praiseworthy aspect of Leckey’s article is its critical engagement with the metaphor of inter-institutional dialogue. Like the remedial measures that are the focus of Leckey’s critique, the metaphor has grown away from its original foundation as a means of highlighting parliament’s continuing power of reply to judicial declarations and is now regularly evoked as an interpretive principle justifying deference. Dialogue theory works well when it situates the branches of government in a dynamic relationship, each entitled to act robustly within jurisdiction, and sharing coordinate responsibility to fulfil the values of the Constitution. It is less compelling when used to “anthropomorphize impersonal institutions – depicting them as gently and patiently speaking or nudging”(32). Leckey’s article is an excellent reminder that the creative tensions which sustain constitutional democracies are meant to be tensions, and that indifference to inconveniencing parliament is sometimes the signature of the judicial role.

[1] 2015 SCC 5.

[2] 2013 SCC 72.

[3] See Carter, above at para 126.

[4] Re Manitoba Language Rights, [1985] 1 SCR 721.

[5] Executive Council of Western Cape Legislature and Others v the President of the Republic of South Africa and Others, 1995 (4) SA 877 (CC).

[6] Morton v British Columbia (Agriculture and Lands), 2009 BCSC 136 at para 198.

[7] Grant R Hoole, Proportionality as a Remedial Principle: A Framework for Suspended Declarations of Invalidity in Canadian Constitutional Law (2011) 49 Alberta Law Review 107.

[8] Kent Roach, Polycentricity and Queue Jumping in Public Law Remedies: A Two-Track Response (2016) University of Toronto Law Journal 3.

Response to Grant Hoole’s Review

Robert Leckey, Dean and Samuel Gale Professor, Faculty of Law, McGill University

I am grateful to Grant Hoole for his careful and generous reading of my paper. I don’t sense major points of disagreement between us. Indeed, while Hoole identifies what he calls the “flaw” in my thesis and a point on which it is “left vulnerable to attack,” nothing in his review troubles my paper’s chief contention, namely that “scholars favorable to such practices [remedial discretion in rights cases] have significantly underweighted their harms.” I read his review as offering welcome suggestions for how one might advance research and reflection in this area. Although now based in Australia, Hoole has studied in Canada and my response focuses on the Canadian context.

I accept Hoole’s suggestion that it would be worth addressing more fully the distinction between remedial discretion (ostensibly) motivated by inter-institutional deference and remedial discretion (ostensibly) motivated by the apprehension of public harm. He’s right that I recognized that the apprehension of harm may justify delayed declarations in some circumstances, but said little about that issue. I said that it wasn’t hard to think of examples where following the hard line of an immediate and retroactive order in every case would appear “unjust, dangerous, or otherwise unacceptable.” Frankly, that was in part a strategic concession. Many sensible readers take for granted the idea that harm or an apprehension of harm will sometimes justify a delayed remedy. I wanted to hold their attention in order to convince them of the harms that a delayed declaration can foster.

In my view, though, the cases where harm would justify a delayed declaration should be rare. Here there may not be a lot of daylight between Hoole’s position and mine. He states that my critique was “incomplete without addressing whether considerations of harm could or should have militated in favor of suspended declarations” in the Canadian cases involving sex work and medically assisted dying. Reading him closely, I see him as being subtly cautious when he leaves open whether an apprehension of harm “could or should have” justified delayed declarations. Two points merit attention.

The first is that a true legal vacuum is rarer than many seem to acknowledge. In the sex work and assisted dying cases, judges, journalists, and members of the public quickly assumed that an immediate strike-down of the challenged criminal provisions would threaten public safety. Public discourse commonly referred to a legal void or vacuum in the absence of the challenged law. The discourse was especially abundant regarding assisted suicide. In that file, the government sought and secured a further delay. Even then, the extension lapsed before Parliament’s new law entered into effect. The assumption of a legal vacuum requires scrutiny. For both sex work and assisted suicide, the general criminal law would have remained in effect and applicable. Municipal by-laws would have regulated sex workers and professional regulations would have framed physicians’ work. I don’t mean that the law would have been coherent or clear, but concerns of a legal vacuum were overblown.

The second reason is that other branches of government may have a role to play. Why assume that avoiding a legal vacuum that would threaten public safety is exclusively a judicial task? A legislature might enact temporary legislation. Moreover, in the Canadian context, a legislature might use the derogation or “notwithstanding” clause – section 33 – of the Charter to keep a rights-infringing law in effect and to buy itself time for the legislative process. Use of that mechanism would be fully public. It would claim solid democratic credentials. It would make the elected lawmakers, and not the judges, responsible for a state of affairs in which rights bearers continued to suffer a violation of their rights after their win in court. To be sure, there are political obstacles to using section 33.

Hoole kindly expresses the hope that I shall expand my thesis to consider its implications for judicial practice more broadly. An opportunity for administrative service has since intervened, curtailing my time for research. It will not be anytime soon that I pursue these lines of inquiry, though I hope the work may inspire others to do so.