Tag Archives: Precedent

Ruiyi Li: Case-law adopted by China?

On the 26th of November 2011, the Supreme People’s Court of China (SPCC) announced the first set of ‘guiding cases’: two civil law cases and two criminal cases.  This marks the establishment of the guiding cases system in China.  What is a guiding case?  A guiding case is a judgement selected by the SPCC from judgments already handed down by courts – both lower level courts and the SPCC itself.  Once the judgment has been selected by the SPCC as guiding case, the lower courts in the Chinese legal system are then required to take account of it.   This introduces something comparable to, but distinct from, the Common Law doctrine of precedent into the Chinese system, and may lead to a profound shift from previous practice.  Generally speaking, China has adopted the model of a civil law legal system, without a doctrine of precedent.  This is because, in part, the primacy of the National People’s Congress, the principle legislative body in China, is taken to exclude a doctrine of precedent.  Only the National People’s Congress can create law.  If the Courts can make law in their judgments through the interpretation of legislation, such interpretation would encroach upon the sovereignty of the NPC.  As this note will explain, the solution of the ‘guiding case’ attempts to preserve this feature of the Chinese Constitution, whilst giving some power to shape the law to the judicial branch.

Art. 2 of the Work Rules in Regard to Guiding Cases (Work Rules) provides a definition of the type of case that may be chosen by the SPCC as part of the guiding case system.  The judgment of the guiding case must be already in force, that is, it must have already been decided by a court, and the case must possesses at least one of the following features: (1) the case has received broad social attention, (2) the legislation applied in the case itself has been drafted in very broad terms, (3) the type of dispute is a paradigm, (4) the case raises difficult, complicated, or new issues, (5) or, finally, a case that does not fall within any of the former four but nevertheless merits a guiding function.

  1. Four guiding cases

 Four judgments were chosen by the SPCC in the first round of the guiding case system.

Centaline Property Agency Ltd. China. Shanghai v. Tao Dehua concerned a disputed brokerage contract arising in the dealing of second-hand properties.  This judgment held that a property sale contract is invalid if the purchaser who has committed to a brokerage contract tries to exclude the agent who organised the deal and buy direct from the seller.  The Court allowed an exception to this rule where the same housing stock information had been released by more than one agency – in this instance, the purchaser is entitled to deal with the one who offers the lowest price and best service.  The Court aimed to protect the lawful rights and interests of the brokering agency, promote the healthy development of brokering service market, maintain the dealing in good faith, encourage fair competition among brokering agencies, enhance the quality of service, and protect consumers’ lawful rights and interests.

The second case is Wu Mei v. Meishan Xicheng Paper Co., Ltd. of Sichuan Province.  It deals with legal effect of settlement agreements signed by the parties outside of the court over a disputed contract of sale.  The Court held that if the litigants have reached a settlement agreement before the judgment is delivered in the trial of second instance, the settlement agreement is binding.  If one party does not perform the settlement agreement or performs it partly, the other side can appeal to the court to enforce the judgment given in the trial of first instance.  In this way, the freedom of disposing the object in issue enjoyed by litigants has been respected, whilst those rules of abiding by the agreement reached have been emphasized and the authority of the first court’s judgment has been preserved.

No. 3 guiding case PAN Yumei and CHEN Ning, A Bribe-Accepting Case concerns corruption, expanding the offence to include some new situations: the position of civil servants who receive bribes indirectly by being registered as a co-founder of a company without contributing anything to its establishment, or who receives bribes directly but either does not act on those bribes or subsequently returns the money.  Such indirect means, or delayed honesty, does not affect the verdict of corruption.

The last decision of WANG Zhicai, An Intentional Homicide Case concerns death sentence reprieves.  In this case the defendant had murdered the victim after she refused his offer of marriage.  The defendant was initially sentenced to death by the Higher People’s Court.  But all death sentences cases must be reviewed by SPCC before execution.  After the SPCC reviewed his case, the murderer was awarded a reprieve.  Because the killing was undertaken in a moment of passion, the death penalty was not appropriate. Considering the emotion of victim’s family, SPCC also decided that para. 15 of the 8th amendment of Criminal Law is applicable in the case which requires a minimum tariff of twenty years for murder.  The SPCC explained why this case was significant.  On three occasions the SPCC cited the importance of the role of the criminal law in achieving social harmony.  The emotions of the victim’s family and other ordinary people should be considered by the court.  Whilst the death sentence should be commuted, the murderer would still be subject to severe punishment.

2. Three steps to establishing the guiding case system.

The SPCC has been preparing for the introduction of a guiding cases system for a very long time. The guiding cases system was first announced in the 2nd Five-Years Reform Outline for People’s Court (2004-2008) (2nd Reform Outline) on the 26th of October 2005.  The aim of this reform was to ensure the unified application of legislation, using a system of guiding cases to produce coherence between courts.  Proposal Number 13 of the 2nd Reform Outline says:

 “Establishing and improving the guiding cases system:  Recognising the role that guiding cases can play in unifying the application of legislation – by directing the lower courts’ operation, enriching and developing their jurisprudence and so on – the SPCC shall lay down the decisions in regard to guiding cases system, and shall determine the standard for, and the process of, cases selection, the way to release guiding cases and guiding rules and so on.”

The Work Rules was issued by the SPCC on the 26th of November 2010.  It may be seen as the second step to the establishment of the guiding cases system.  The Work Rules specify the mechanism through which the guiding cases are selected.  The SPCC is the only body with authority to determine which cases should be guiding cases and to promulgate them (Art. 1 of the Work Rules).  Based on Art. 3 of the Work Rules, a Guiding Cases Affairs Office (GCAO) has been set up, which is an office of the SPCC.  The GOAO is in charge of selecting and investigating guiding cases.  All the divisions of SPCC can recommend cases to GCAO directly, but other bodies can also suggest cases to the GCAO.  The Higher People’s Courts (HPC) and the Liberation Army Military Court (LAMC) can recommend cases to GCAO after HPC or LAMC’s judicial committee discusses their significance.  The Intermediate People’s Court (IPC) and Basic-level People’s Court (BPC) only can recommend cases to GCAO indirectly via referral through their superior courts.   Individuals may recommend any case which they think should be guiding case to the Court which delivered that case.  After selection by GCAO, the GCAO then reports its opinions on the merits of the case to the Judicial Committee of SPCC which will finally decide which one should be guiding case.

The third step toward the new system was taken by the SPCC by issuing an order to lower courts on 20th of December 2011.  This order made two points.  The first part seeks to ensure that all the courts accurately understand the guiding spirits, the ratio, of the four cases.  This part sets out the four cases and specifies the guidance provided by each case.  The second part requires that the lower courts should bring the guiding cases into play, setting out the duties of the lower courts in the guiding case system.  In particular, the Supreme Court limits the capacity of the Higher People’s Court to promulgate guiding cases.  By referring to the guiding cases system, the HPC may release some cases to guide its lower courts, but may not use ‘guiding cases’ or similar phrases to avoid confusing the cases announced by HPC with cases announced by SPCC.  This measure introduces a limited form of something like a hierarchy of judicial precedent into the system.  Both the SPCC and HPC have some power to pick cases that influence lower courts, but the decisions of the SPCC are given higher legal status than those of the HPC.  Following this order, the guiding cases system has been established in China

3. The nature of guiding case

The guiding cases system established in China is different from the Common Law understanding of precedent.  Guiding case and precedent are different, not only in their expression but also in their nature.  Art. 7 of the Work Rules provides that all courts should refer to guiding cases when they adjudicate similar cases – but  this is the only provision that concerns the effect of guiding cases.  Guiding cases must be referred to by the lower court, but they are not, in themselves, authoritative.  In other words, the ratio decidendi of guiding cases cannot be the legal ground of the lower court’s judgment, but it can be cited as a reason for explaining the judgment.  The possible legal bases of judgment are not expanded: the text of the Codes is still the only binding legal authority.  The judgment of guiding case is more like an interpretation of specific provisions, through which the higher courts clarify vague provisions and fill in legal loopholes.

The differences between the guiding case system and precedent are rooted in the constitutional settlement contained in the Constitution of China.  The National People’s Congress (NPC) enjoys complete sovereignty.  Courts in China have no power to review primary legislation or secondary legislation, let alone the power to change or modify legislation.  Thus, under the Constitution of China it is impossible for the judges to make law, whilst law-making is the essence of the Common Law tradition.  Guiding cases system is a judicial reform, but any reform must still be accord with this constitutional settlement.  For this reason, the SPCC created a guiding case system instead of precedent which, crucially, does not formally empower the SPCC to change or develop the law.  This constitutional concern might be another reason why the SPCC avoided using the sensitive word precedent in setting out the new system.

4. Challenges of the new system

The new system attempts to secure the advantages of both the Common Law and civilian systems.  The guiding cases system may bring some benefits to China’s legal system, perhaps by enhancing the faith of the masses in the judiciary, but it is a radical departure for the judiciary in China.  The first challenge is how the lower courts will use the guiding cases.  Some commentators are worried that the judges may try the cases mechanically.  There is no detailed guideline of how to determine which guiding cases to follow and precisely what significance these cases should be given, a lack of guidance which increases the practical difficulties for a judiciary that has been trained in the context of civil law.  Normally judgments handed down by Chinese courts are very brief, and this is also true of the judgments of the four guiding cases.  Thus, there is actually not much content in the judgments for the lower courts to referred to.

The selection of the guiding cases has also been criticized.  Some cases that are more typical and more significant than the four handed down have not been selected to be guiding cases.  The HPCs recommend 20 cases in total to the SPCC, but only four were selected.  This demonstrates that the SPCC is being very cautious in the beginning.  Furthermore, the guiding cases system will not extend to interpretations of the Chinese Constitution.  The Constitution of China only can be interpreted by the Standing Committee of NPC, the legislature, and cannot be adjudicated on by the judges.  Therefore, there are no judicial decisions on constitutional law in China.

Finally, there is a tension inherent in the new system.  As analyzed previously, law-making by judges is constitutionally impossible.  It might be argued that the judges are only interpreting the legislation in the judgments – but it is impossible to avoid creation when judges interpret legislation.  The creative aspect of interpretation may be translated into a familiar word: law-making.  Under the surface of the guiding case system is a potential challenge to the constitutional settlement.  To avoid this happening, judges may write judgments more rigidly than before, for example adopting the approach of rigid Originalism to interpret the legislation.  But if the interpretation very mechanical how will the guiding cases succeed in play a guiding role?

Ruiyi Li is a post-doctoral researcher at the Law School of Tsinghua University, China.

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Christopher McCrudden: Slavery and the constitutional role of judges

How far should judges “update” our legal concepts, or should they root their interpretation in the historical understanding of the concept, leaving updating to the legislature?

In the United States, disputes between “strict constructionists” who seek to base the meaning of the Constitution on a literal meaning of the text infused with an understanding of what the Founding Fathers intended (think of Justice Scalia), and those who seek a “moral reading” of the Constitution, like Ronald Dworkin, are the stuff of political debate and Senate judicial confirmation hearings.

In the United Kingdom, an equivalent debate has never, really, caught hold of the popular imagination. I’ve yet to see a prime time television debate here on the pros and cons of judicial use of teleological interpretation, although shadows of the American debate flit occasionally through some of the current political debates on the role of judges in the human rights context. Is it time for this issue to be brought more into public discussion, and a moral reading defended?

The issue goes beyond the role of judges, of course. If we expand the use of a term with a powerful moral message based on its original use beyond that original meaning, is there a danger that we undermine the power of its use in the original context?  If we apply the word “torture” to water boarding, do we devalue it when we want to use it to describe the Tudor practice of disemboweling living prisoners before their executions? If we apply the word “holocaust” to the genocide in Rwanda, do we debase the Jewish holocaust in the Europe of the 1930s and 1940s?

Similarly, if we say that some types of domestic servitude or trafficking are “slavery,” do we lessen the full horrors of the trans-Atlantic slave trade of the 17th, 18th and 19th Centuries?

So far as I know, every country in the world has legally abolished slavery.  If slavery is defined as existing where one person has the legal ownership of another person, then slavery does not exist because in every country that has abolished slavery the legal ownership of one person by another is not possible.

Should we say, then, that the category of who is to be classified as a slave today should break away from the requirement of legal ownership?  Or should we keep the concept of slavery as the term to be used only to describe a historically-situated and specific form of degradation, and develop different legal terms to describe the new problems of degradation we face: servitude, forced labour, trafficking?  Does it matter what we call it, as long as we can get rid of it?

When an international treaty was being drafted to prohibit slavery, the definition of slavery that was agreed in 1926 attempted to address this problem. The Slavery Convention defined slavery, in the first Article, as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”

Does this mean that legal ownership of one person by another is still necessary, in which case it will have almost no application today, or does it mean that a broader category of practices will be caught by the definition? In particular, how far should we use our understanding of the historical practice of slavery to inform our interpretation of what “the powers attaching to the right of ownership” means in the slavery context?

In the first case to deal with the definition of enslavement as a crime against humanity for sexual exploitation, the International Criminal Tribunal for the Former Yugoslavia (ICTY) decided in Prosecutor v Kunarac, judgment of 12 June 2002, at para 117, that: “[T]he traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as ‘chattel slavery’ has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership. In the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with ‘chattel slavery’, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of ‘chattel slavery’ but the difference is one of degree.”

The Tribunal identified, at para 119, certain factors as critical in finding that a particular relationship constituted slavery: “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour”

In Koraou v Niger (2008) AHRLR 182 (ECOWAS, 2008), the Court of Justice of ECOWAS, the Economic Community of West African States, held that Miss Koraou was a victim of slavery for the nine years she was held by her master, and that the state of Niger was liable for its failure to deal adequately with this form of slavery, awarding her about US$ 20,000.

As regards whether she was held in slavery, the Court (controversially — my colleague Jean Allain has strongly criticized the decision, 103(2) American Journal of International Law (2009), 311) adopted the approach taken by the ICTY. Niger denied that Miss Koraou was a slave; she was, it is quoted as saying, at para 78, the wife of her former master “with whom she had lived a more or less happy marital relationship”.

The Court would have none of this.  At para 79, it states: “Even with the provision of square meals, adequate clothing and comfortable shelter, a slave still remains a slave if he is illegally deprived of his freedom through force or constraint.  All evidence of ill treatment may be erased, hunger may be forgotten, as well as beatings and other acts of cruelty, but the acknowledged fact about slavery remains, that is to say, forced labour without compensation.  There is nothing like goodwill slavery. Even when tempered with humane treatment, involuntary servitude is still slavery.”

The Court continued, applying this approach to the facts of the case, at para 80: “the moral element in reducing a person to slavery resides … in the intention of [her former master] to exercise the attributes of the right of ownership over the applicant, even so, after the document of emancipation had been made. Consequently, there is no doubt that [Miss Koraou] was held in slavery …”.

Although a significant victory, and procedurally difficult, it was in one sense an easy case for the Court, if not for the applicant, because it was clear that what her former master did was to seek to continue, after her manumission, the conditions that had characterized the relationship that has existed when she was his slave. In that sense, it was a clear case of wanting to continue exercising the “powers attaching to the rights of ownership.” The Court’s broader definition, technically, goes beyond what it needed to do to establish slavery in this case.

What about cases where there is no prior relationship of slavery? In Siliadin, (2006) 43 E.H.R.R. 16, the facts were at one level far removed from those in the Koraou case. In January 1994 Ms Siliadin, who was then fifteen and a half years old, arrived in France with a French national of Togolese origin, who had undertaken to regularise the girl’s immigration status and to arrange for her education. Ms Siliadin was to do housework for this woman until she had earned enough to pay her back for her air ticket. The applicant effectively became an unpaid servant and her passport was confiscated. She was subsequently “lent” to another couple and became a maid to the couple, who made her work from 7.30 a.m. until 10.30 p.m. every day with no days off. The applicant slept in the children’s bedroom on a mattress on the floor and wore old clothes.

Did this amount to a breach of Article 4 ECHR? In cases like this, the tension between slavery as a unique institution existing at a certain time and place, and slavery as a set of practices like those described by the ICTY and adopted by the ECOWAS court is most apparent. How far should the historical understanding of the concept determine its current use?

In Siliadin, the ECtHR appears, on one reading, to restrict the current understanding of slavery to something much closer to the historical idea of chattel slavery, that is slavery based on ownership. But the way in which the Court in Siliadin phrases the crucial paragraph is ambiguous. The Court says: “Although the applicant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B exercised a genuine right of legal ownership over her, thus reducing her to the status of an ‘object’.”

One might emphasize the legal ownership point. I would emphasise the last part of the sentence.  This is because these words (“reducing her to the status of an ‘object’”) is a clear indication that the Court is conceptualizing (in a somewhat confused way, I admit) the idea of slavery as a particularly egregious form of the denial of a person’s human dignity, in the Kantian sense of not treating a person as a means rather than an end in themselves.  Thus it seems that what the Court requires is evidence of the type of extreme “objectivization” of a person that we find in chattel slavery. That seems to be the essence of what the Court is getting at here. This approach is also consistent with the Court’s general approach of adopting what it calls a teleological approach, rather than an historical approach, to interpretation.

This interpretation is borne out by the ECtHR’s subsequent case law, particularly Rantsev v Cyprus and Russia, (2010) 51 EHRR 1. In that case, the ECtHR considered whether trafficking constituted a breach of Article 4 ECHR. Here is what the Court says, at para 276, regarding Siliadin: “In Siliadin, considering the scope of “slavery” under art. 4, the Court referred to the classic definition of slavery contained in the 1926 Slavery Convention, which required the exercise of a genuine right of ownership and reduction of the status of the individual concerned to an ‘object’.”

The Court continues, at para 280, that “the International Criminal Tribunal for the Former Yugoslavia concluded that the traditional concept of ‘slavery’ has evolved to encompass various contemporary forms of slavery based on the exercise of any or all of the powers attaching to the right of ownership. In assessing whether a situation amounts to a contemporary form of slavery, the Tribunal held that relevant factors included whether there was control of a person’s movement or physical environment, whether there was an element of psychological control, whether measures were taken to prevent or deter escape and whether there was control of sexuality and forced labour.”

It then goes on to find that trafficking is just such an example of where the “powers attaching to ownership” are being exercised, although the Court decides that it is unnecessary to decide whether trafficking amounts to torture because in any event it itself amounts to a violation of Article 4.

Which brings us to the role of British judges. In a recent case, decided this July (R. v SK [2011] 2 Cr. App. R. 34), the English Court of Appeal interpreted recently enacted British legislation outlawing slavery. Section 4(1) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 made it an offence, among other things, to arrange or facilitate the entry into the United Kingdom of an individual with the intention to exploit that individual in the United Kingdom. Section 4(4) of the 2004 Act provided that a person was exploited if she was the victim of behaviour that contravened Article 4 ECHR.

The defendant in this case had arranged for the entry of a woman into the United Kingdom from a country in Africa. Between October 2006 and February 2010, she was made to work long hours, was poorly fed, and was paid irregularly. She was never allowed out on her own, and her conversations with her family in her own country were listened to and sometimes recorded. The defendant was charged with trafficking a person into the United Kingdom for exploitation.

In interpreting what the Court of Human Rights said about slavery in Siliadin, the Court of Appeal said (at para 39): “[The] core elements [of Article 4] … defined in the judgment of the European Court of Human Rights in Siliadin … form a hierarchy of denial of personal autonomy. The essence of the concept of ‘slavery’ is treating someone as belonging to oneself, by exercising some power over that person as one might over an animal or an object…”

And then at para 41: “Nor should the concepts be seen as archaic.  To dismiss ‘slavery’ as being merely reminiscent of an era remote from contemporary life in the United Kingdom is wrong.  In the modern world exploitation can and does take place, in many different forms.  Perhaps the most obvious is that in which one human being is treated by another as an object under his or her control for a sexual purpose…”

What, then is my point?  The modern (legal) view of slavery takes the idea of legal ownership and views it as wrong because of the deeper meaning that it has: that it reduces humans to mere objects, and is thus fundamentally inconsistent with their humanity. History plays an important role in persuading the courts to come to that conclusion. But recent human rights courts (and the Court of Appeal) get it right, I think, in focusing on the essential wrong, rather than on the legal form in which that wrongness was encapsulated, however much that may have been the focus of attention of the abolitionists.

More broadly, what the story teaches us is that, if a British debate on the role of judges does begin to ape the American debate, and I suspect over time it will, we should not be content only to consider these issue at a highly abstract level.  What adopting a teleological approach to interpretation means in practice is that the Siliadins, the Koraous, and the anonymous victim in R v SK obtain a legal remedy. The evolution of the concept of slavery shows the importance of judicial evolution of legal concepts. It shows the importance of a teleological interpretation in practice. It is something we should be proud of.

Christopher McCrudden is Professor of Human Rights and Equality Law, Queen’s University Belfast, and Leverhulme Major Research Fellow 2011-2014. 

An earlier version was presented to a panel discussion “Slavery Against the Law: Enslavement and Human Trafficking in Historical Perspective, from the Amistad Captives (1839) to Siliadin v France (2005)”, University of Michigan Law School, October 6, 2011.



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Bradley W. Miller: Assisted Suicide and Judicial Review

What considerations can justify a court overturning a recent constitutional precedent?  This constitutional perennial is once again in the foreground as a Canadian court is asked to revisit a 1993 judgment (R. v. Rodriguez, [1993] 3 SCR 519)) upholding the constitutionality of the criminal prohibition of assisted suicide.  The sole justice from that panel remaining on the Supreme Court of Canada is Chief Justice Beverley McLachlin, who had dissented.

Understandably, the plaintiffs in Carter et al v. Attorney General of Canada (BC Supreme Court, Vancouver Registry No. S112688) to be argued in November 2011, have skirted the question.  The only allegation pleaded that could be relevant to whether a court should overturn Rodriguez is that “(a) significant number of countries now authorize physician-assisted suicide”, although the constitutional significance of foreign practice remains deeply controversial in Canada.

Some further background, then, is needed.  It is often said that constitutional litigation is the only alternative in the face of legislative indifference or inaction.  But in this case the refusal to legislate is, on any account, a considered refusal and not mere inattention.  Since Rodriguez, bills proposing the decriminalization of physician-assisted suicide were introduced in the House of Commons in 1994, 2005, and most recently in 2009, along with a motion calling for a special parliamentary committee to review the criminal prohibition of euthanasia and assisted suicide in 1997.  All of these bills and motions were defeated.  Additionally, a Special Committee of the Senate held hearings in 1995 and in its report recommended that euthanasia and assisted suicide remain criminal offences.  So the circumstances are different from those said to have preceded the Canadian courts’ initial foray into same-sex marriage; that the matter had never been put up for serious debate in any public forum prior to the issuance of the writ.  Nor can it be credibly argued that the legislation in question is the product of animus against any group of persons who lack access to Parliament.

What about changes in public opinion?  The plaintiffs can, if they choose, point to opinion polls reporting comparatively high levels of support from the general public (though not from physicians) for some form of decriminalization.  But Canadian courts are reluctant to let questions of constitutional principle be answered by opinion polls.  WJ Waluchow has argued that courts ought to be wary of majority opinion, and only give effect to what he characterizes as the “community’s constitutional morality”, understood as the “moral norms and convictions to which the community, via its various social forms and practices, has committed itself and that have in some way or other been drawn into the law via the rule of recognition and the law it validates.” (Common Law Theory of Judicial Review (2007), p. 227)  Opinion polls are not a suitable guide for judicial reasoning; courts, on this theory, may only be guided by deep, settled convictions that have been drawn into law.

This brings us, then, to questions of the development of constitutional doctrine.  The Supreme Court of Canada has, in recent years, not been shy about modifying settled Charter of Rights doctrine.  This is often in response to concerns that legal tests that have been adopted have become breeding grounds for confusion and ad hoc decision making.  The career of s.15(1), the Charter’s anti-discrimination provision, has been a poster child for this sort of thing.  Nevertheless, it is rare for the court to directly overturn a previous decision.  It did so recently in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia (2007), where it explicitly overturned a 20 year old precedent that held that the Charter’s guarantee of freedom of association under s. 2(d) does not provide a right to collective bargaining.  It did so by relying (uncharacteristically) on the original intent of the framers and acknowledging that its earlier decision was simply wrong.  The reliance on original intent is highly unusual in Canadian constitutional jurisprudence, and can only be explained by the Court’s anxiety that its departures from precedent appear principled and restrained, and not simply a matter of the Court having changed either its mind or its membership.

The Court will also take changes in international law and the practices of other jurisdictions as capable of justifying a change in domestic constitutional interpretation, but this is highly selective: see Sauvé v. Canada (Chief Electoral Officer) (2002), a prisoner voting case in which McLachlin CJ rejects the relevance of the practices of “self-proclaimed democracies” [para. 41] such as the UK, US, Australia, and New Zealand.

A more common avenue for escaping the strictures of precedent is for the court to formally uphold a precedent, while arguing that new or different facts, once fed into a proportionality test – fast becoming “one test to rule them all” – mandate a different result.  For example, when explaining why its constitutional review of the tobacco advertising restrictions in 2007 would not be governed by a 1995 precedent (RJR-MacDonald v. Canada (AG)), the Court stressed the significance of a different factual matrix:  in 1995, apparently, the Court was unaware that smoking could be addictive or a risk factor in fatal illness (Canada (AG) v. JTI-Macdonald (2007)).  Similarly, in a 2001 case on the constitutionality of extradition to face the death penalty (United States v. Burns, (2001)), the Court explained that ten years earlier (Kindler v. Canada (Minister of Justice), (1991)) it was unaware of the prevalence of wrongful conviction. These explanations, of course, are not always convincing, but they do allow a way around a precedent without admission of a change of heart.

Where does this leave Carter v. AGC?  To succeed in overcoming Rodriguez (given the hurdle placed by the continuing attention of both houses of Parliament), the plaintiffs would have to demonstrate that Rodriguez has been overtaken by developments in Canadian law dealing with the concepts of dignity, sanctity of life, and autonomy and that the experience with physician-assisted suicide in other regimes since 1993 should vitiate any concerns expressed in Rodriguez about the need to maintain the prohibition in the interests of the vulnerable.

On the question of whether there has been robust change to the concept of autonomy in Charter jurisprudence, the plaintiffs face an uphill battle.  There has indeed been an expanded licence for obscenity and indecency, and a minority of judges have held intermittently that the Charter may protect “basic choices going to the core of what it means to enjoy individual dignity and independence” (Godbout v. Longueil (1997)).  But all attempts to date to harness that proposition in support of a constitutional challenge to a criminal law have failed (see, eg, R. v. Malmo-Levine (2003), a Charter challenge to the criminalization of possession of marijuana).

Another question, of course, is the relevance of the contested legacy of the Netherlands and other jurisdictions since 1993.  The statutory framework adopted by the Dutch is considerably different from that adopted in, for example, Oregon.  The impact of each system on such matters as the incidence of non-consensual euthanasia and the availability and quality of palliative care remains has to be carefully assessed.  There is a large and controversial body of scholarship on these and other matters, and much time at trial will have to be given over to expert evidence.

Significantly, however, the plaintiffs in Carter are not proposing the adoption of any legislative framework.  They are simply demanding that the prohibition on assisted suicide be struck down as unconstitutional.  Were such an order granted, it would mean, of course, that there would be no safeguards or guidelines whatsoever to govern the practice of assisted suicide.  A reviewing court would not be in a good position institutionally to choose to adopt a Dutch model or an Oregon model or indeed any model of legislation at all.  The plaintiffs’ expectation, no doubt, is that the court would simply suspend its declaration of invalidity for a year or so to allow for Parliament to craft the necessary safeguards.

And here problems start to metastasize beyond considerations of whether a court is justified in overturning precedent.  A court cannot simply assume that if it strikes down the prohibition, Parliament will be able to draw up a replacement that both permits assisted suicide and satisfies Parliament’s obligation to protect the vulnerable.  Even assuming that such a regime would be possible, a political settlement might not be.  To understand the danger here, one only has to bear in mind the legislative aftermath of the Supreme Court of Canada’s decision to strike down the Criminal Code’s abortion provisions (R. v. Morgentaler (1988)).  The Court’s clear expectation was that Parliament would enact successor legislation, containing some new restrictions that would be applied more evenly across Canada.  But no successor legislation proved politically feasible, and as a result Canada remains without any legislative restrictions on abortion whatsoever.  Among the self-proclaimed democracies it is alone on this.

Once a court ventures into a morally charged debate such as abortion or assisted suicide, it changes the political dynamic in ways that cannot be anticipated.  The possibility of legislative failure has to be borne in mind by any reviewing court.

Bradley W. Miller is an Associate Professor in the Faculty of Law at the University of Western Ontario.

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