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Tuesday, February 28, 2012

Lawes or Pollicie?

Reading a legal casebook can be a frustrating experience, for more than one reason. A reader may be frustrated when there seems to be no underlying order, rhyme or reason to the different ways that factually similar cases have been decided by different judges (sometimes even by the same judge). Certain areas of law are worse than others in this respect, tort and intellectual property being examples, in my experience.

What I also find frustrating is when I read a case in which both facts and law are clear, and seem to point unequivocally toward a certain decision, but that decision is at the same time morally, politically, or economically undesirable to anyone other than the party it would vindicate. In truth, I don’t know which I find more unbearable in such cases: the unpalatable decision the law points toward like some hidden chorus, or judges who employ all the sophistry at their command to disregard this chorus and force their preferred outcome. On balance, methinks the latter.

Here follow two hoary cases, decided within a few years of each other by the same court, whose facts and applicable law are in all relevant respects the same, but where the respective judges have come to entirely different conclusions. In the first (Re Drummond Wren), the judge constructs a plausible argument for generating the outcome that he (and we) desire. In the second (Re Noble and Wolf), the judge stoutheartedly sticks to the law, allowing injustice to seemingly triumph, while recognizing it is not the outcome he would have preferred. I would be curious as to which of these decisions you would support. I know where I stand.

Re Drummond Wren [1945] OR 778 (HC)

I should say that at least part of the interest of Drummond Wren for me lies in the fact that the incident it relates took place literally around the corner from my home in East York.

The Worker’s Educational Association (WEA) bought a lot to build a house and raffle it off as a fundraiser. However, there was a restrictive covenant on the land, preventing its sale to “Jews or persons of objectionable nationality.” The WEA sought to invalidate it. But on what grounds? The common law had no objections to such covenants. We must also remember that this case pre-dates both the Charter of Rights and Freedoms and the earlier Bill of Rights. There was no legal or constitutional bar to such discriminatory restrictive covenants at the time.

However, the judge, Mackay, J invalidated the covenant on grounds of public policy. In the course of his judgment he cited certain international agreements to which Canada was a party but which had not been made part of Canadian domestic law, agreements promoting equality and condemning racial discrimination. Although they were not binding, he took Canada’s being signatory to these documents to be indicative of Canada’s public policy commitment to equality. He found that Canada’s apparent public policy position as expressed in these documents was averse to racially restrictive covenants.

Besides such aspirational international agreements, Mackay, J further noted that because Canada is not a homogenous society, there was a public policy imperative in favour of racial harmony, which would be served by invalidating such racist restrictive covenants.

In light of Canada’s public policy interests as expressed in various non-binding documents and in light of a little a priori reasoning about what was in a heterogenous nation’s best interests, Mackay, J felt justified in striking down the restrictive covenant. One sympathizes with him; after all, there is something which rebels against allowing the law to act as an accomplice to injustice. However, his position was repudiated soon after in another case issuing from the same court, and in my opinion on sounder grounds.

Re Noble and Wolf [1948] OR 579 (HC)

This case, tried three years after Drummond Wren, involved the sale of lots in a cottage community on Lake Huron. The land to be subdivided was subject to a restrictive covenant specifying that it could not be transferred to anyone of the “Jewish, Hebrew, Semitic, Negro or coloured race or blood.” Noble and Wolf applied to have the covenant set aside, as Noble wished to sell her lot to Mr. Wolf, who was Jewish.

The decision in the Ontario Supreme Court was not in their favour. Schroeder, J explicitly disagreed with the decision in Drummond Wren. He purposely eschewed appealing to public policy arguments, noting that “public policy” is a vague term, meaning many things to many people. Perhaps more importantly, he asserted that “It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments.” Although he admitted to deploring the racism of the covenant in question, he simply could find no good legal reason why he should strike it down. At the end of the day, it was for the elected legislature to determine whether such covenants should be prohibited.

Implicit in Justice Schroeder’s decision is the following argument, related specifically to the reliance in Drummond Wren on non-binding international covenants: A judge who upholds a non-binding international covenant or treaty as a valid source of law thereby violates the constitutional separation of powers between the executive and legislative branches of government. The executive can sign all the agreements it likes, but the latter do not become law until they are incorporated into the body of domestic law by act of the legislature. Justice Mackay’s use of such agreements as indicative of Canada’s public policy and so as grounds for his decision is tantamount to doing an end run around Canada’s elected legislature. He has played fast and loose with the constitution.

Sadly, precisely such violations of the constitutional separation of powers have become all too common in more recent times, as activist judges treat such aspirational international documents as if they were valid law, in order to generate preferred decisions that the real law constrains them from making. Often, they are led into this error when they leave the law behind to go a-questing in search of “public policy”. Of course, to call it “error” is being rather generous, since often it is done quite consciously.

(On this note I cannot recommend highly enough a book called The Charter Revolution and the Court Party, by F. L. Morton and Rainer Knopff (Peterborough, ON: Broadview Press, 2001). It outlines the many ways in which Charter jurisprudence in Canada has been hijacked by well-organized and sometimes even well-meaning lobbies that use the Charter as a tool to achieve political goals that they cannot readily achieve by democratic means. It has opened my eyes on many constitutional issues.)

The Rule of Law

Just as we feel the law ought not to be a party to the commission of injustice, neither ought it to usurp the right of a democratic people, through its elected institutions, to decide for itself what shall be in its interests and what shall be its public policy. This is the essential tension that these cases bring out.

At its core, the comments of Justice Schroeder in Noble and Wolf express a certain conception of the rule of law. According to this conception, law comprises a set of rules that are binding on everyone in all cases. This idea is expressed in such phrases as “nobody is above the law” and “the rule of laws, not of men”.

Some of these rules are derived from case law, in which judges see their role as that of faithfully following the decisions set down by judges before them (especially ones from superior courts), who in turn derived their decisions from ancient custom, the common sense of the “reasonable man”, or what have you. Other rules, an increasing number in fact, come in the form of statutes passed by legislatures. Such legislatures are competent to pass laws to rule us because they possess a political legitimacy derived from their being a body of the people and elected by the people who will themselves be subject to the laws they pass. To that extent, citizens can be said to bind themselves to laws of their choosing. Of course, this is all quite idealized and presupposes an essentially fair democratic electoral process that doesn’t really exist in Canada.

Whether derived from case law or statutes, it is important to note that, at least in liberal democracies, law does not have its ultimate source in the whim or caprice of any individual. A statue is passed by a legislature in response to the collective will of the people (perhaps a dubious notion in itself), or the following of case law in response to what is taken to be an expression of the ancient custom of the people (even more dubious); these are both examples of the idea that the rule of law is something that transcends the will or caprice of any individual.

At the core of the rule of law is the notion that all must be guided and constrained by law, even where in particular instances it is not in one’s — or indeed anyone’s — interest to follow it. If each was allowed to be judge in his own case, or to be “a law unto himself”, civil society would become impossible.

Similarly, a dictatorship lacks the rule of law because the only “law” is the dictator’s will on any given occasion: such law lacks the sort of stability to guide and coordinate the activities of citizens, and even where the dictator’s will is reasonably steady, he himself is not subject to it; the dictator is literally above the law (or at least outside it).

The judge who deviates from the law in coming to a decision, even with the best of intentions, substitutes his own will, his own preference, in place of the law. The fact that he believes many would happen to share his will does not change this. In that sense he is a dictator in miniature. In a case like Drummond Wren, there is the temptation to think that the judge is justified in appealing to his own conception of public policy, but it is easy enough to imagine other cases where the outcome of judicial entrepreneurship may not be so benevolent. It is only in relatively recent times that we in Canada have come to think of judges as impartial servants of social justice. However, consider this: most labour relations is governed by statues that place collective bargaining and arbitration in the hands of administrative tribunals distinct from the courts of law. There are a few reasons for this, but one of the most important is the fact that, historically, courts have not always been perceived as sympathetic friends of labour. A similar phenomenon was seen in the US, where courts represented a major obstacle to the reforms of the New Deal.

Back when judges were inimical to labour, many of their decisions were founded on claims of public policy, for example the claim that interference with freedom of contract would have detrimental effects on production and economic prosperity. You see, as Schroeder, J pointed out, “public policy” can mean different things to different people at different times. As such, public policy is something perhaps more appropriately determined by elected legislatures rather than left to the conscience of the individual judge. Confusing law with public policy, and confusing the rule of law with the will of old men in robes, is to risk the sort of misrule characterized by Queen Lucifera’s government in Spenser’s Faerie Queene (1.4.12):

“Yet rightfull kingdome she had none at all
Ne heritage of native soveraintie;
But did usurpe with wrong and tyrannie
Upon the scepter, which she now did hold:
Ne ruld her realme with lawes, but pollicie,
And strong advizement of six wizards old,
That with their counsels bad her kingdome did uphold.”

We want to applaud Justice Mackay in Drummond Wren, since his heart was obviously in the right place. And he certainly produced the decision most decent people would prefer. But the rule of law demands that we think beyond the immediate case, to those future cases in which public policy might be determined by judges whose views on public policy do not happen to harmonize with the considered views of the people. Legal history is full of such judges: Jeffreys (the original “Hanging Judge”), Brown (Plessy v. Ferguson), Taney (Dred Scott), Peckham (Lochner v. New York), etc.

Let all judges stick to what they know — the law. Let the public, through their elected officials, and hopefully with the sound counsels of experts, decide on public policy.

I realize that I have tried your patience with this preachy and oversimplified diatribe on the rule of law. But it’s something I feel strongly about. “Rule of law” is a phrase that is used often, but understood seldom, especially among legal experts, whom one would expect to be better informed.

On the Other Hand…

I confess I am not entirely comfortable with the position outlined above. It seems very unfair to ask a person or group who suffers from discrimination that they must be patient and wait for the tide of public opinion to turn, and for the people’s sense of justice to work like the drip of water upon the stone of our political institutions. I am duly reminded of Martin Luther King Jr.’s argument in Letter from a Birmingham Jail to the effect that it is too easy for whites to urge blacks to be patient, and that change will come in its own due time. King naturally replied that blacks had been waiting a long time already; they had been more than patient, and that now it was time for whites to listen and act instead of expecting others to wait for them to do the right thing.

It is hard to dispute that. But one shouldn’t forget something else King said in that same letter: “One who breaks an unjust law must do it openly, lovingly... I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.” King urges us to have the conscience to break an unjust law, but he does not tell us to do so and expect to go unpunished for it. The very injustice of the punishment may be a spur to changing the unjust law. It draws our attention to the law’s injustice in a way that might not happen when a well-meaning judge simply winks and looks the other way and finds dubious means not to enforce it. At best, the law may fall into abeyance, but the people and their legislators are never made to feel the injustice and to do something about it. The sense of (in)justice is allowed to remain dulled.

In short, King recognized that there is no fast way to make fundamental change; people must work at it, and suffer for it.


Incidentally (or not?), the Supreme Court of Canada overturned the Ontario Supreme Court’s decision in Re Noble and Wolf in Noble et al. v. Alley [1951] SCR 64. The latter decision makes for instructive reading. It was based mostly on two grounds. One of these grounds turned on the old 1848 English Chancery decision of Tulk v. Moxhay, which laid down the principle that the court “has authority to enforce a contract, which the owner of one piece of land may have entered into with his neighbour, founded, of course, upon good consideration, and valuable consideration, that he will either use or abstain from using his land in any manner that the other party by the contract stipulates shall be followed by the party who enters into the covenant…” In other words, restrictive covenants are legally enforceable by courts. The majority in Noble v. Alley decided that the present case was “an unwarrantable extension of that doctrine,” though it’s frankly not clear to me why they thought so.

The sole dissenting judge in Noble v. Alley, Locke, J, noted that the question whether extension of the doctrine was warrantable or unwarrantable was neither here nor there, since it was not a question presented for consideration by either of the parties in either the original trial or in the subsequent appeal. Put another way, he saw no reason to presume that Schroeder, J had made a mistake of law, based on what was presented for his consideration, and therefore no reason to overturn his judgment. Technically, Locke is correct, though it is a very narrow interpretation of the ambit of the Supreme Court’s review powers by today’s standards.

The second ground for the majority’s decision to overturn Schroeder’s judgment was the apparent uncertainty of the covenant’s terms, since “from its language it is impossible to set such limits to the lines of race or blood as would enable a court to say in all cases whether a proposed purchaser is or is not within the ban.” Note that this does not invalidate racially restrictive covenants per se, but only poorly-worded ones. Apparently, aspirant racists were being advised to better define what they mean by “Jewish, Hebrew, Semitic, Negro or coloured race or blood” in the future. On the other hand, it could also have been argued (but wasn’t) that the putative uncertainty of terms was not relevant to the case at hand, since there seemed to be no doubt about the applicability of the term “Jewish”, Wolf having self-identified as such.

More satisfactory was the US Supreme Court’s decision in Shelley v. Kraemer 334 US 1 (1948), which was contemporary with Re Noble and Wolf, in which it was held that a covenant barring land from being sold to “people of the Negro or Mongolian race” violated the equal protection clause of the Fourteenth Amendment and so could not be enforced. Unfortunately, Canada at the time did not have such a commodious constitutional instrument at hand to generate the preferred decision.

A parting question: Shortly after Re Noble and Wolf had worked its way through the courts, Ontario passed legislation voiding such racially restrictive covenants. Does that change your opinion of the (im)propriety of Mackay, J’s decision in Re Drummond Wren? Does it lend support to the views expressed by Schroeder, J on the separation of powers between legislature and judiciary in Re Noble and Wolf?

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