The State and the Individual

MR. JOLLIFFE:

Our guest has had a career - and indeed he is still vigorously engaged in a career - of such notable service to his country and particularly to the peo ple of Ontario, that it is almost impossible to do justice (if I may use the word) to him or to his qualifications to speak to us today on the subject of the "State and the Individual".

As a member of the Bar he had a highly diversified experience in all our Courts and as far away as the Judicial Committee of the Privy Council - which was our Court of last resort; he also played a key role in inquiries of great public interest and importance; for example, as a member of the Archambeault Commission on Penal Reform, which made a historic report more than 30 years ago.

In 1944 he was appointed to the Court of Appeal and the following year became Chief Justice of the High Court, the trial division of the Supreme Court of Ontario, an office which carries great administrative as well as judicial responsibility, in which he continued with distinction for 18 years. There must have been few judges in our history who commanded as much respect from the bench, the bar and members of the public who appeared before him, because he was so manifestly careful, thorough and devoted to duty in everything he said and did, yet he found time to write a well-known book analysing the trial of Jesus, testing it by the standards of Hebrew and Roman law as well as by his own high standards of objectivity.

He has a zeal for research and scholarship as well as a deep interest in the human condition and that concept of liberty which is perhaps the saving grace of our civili zation. These are only a few of the reasons no better man could have been found by the Government of Ontario to inquire into civil liberties in this province.

This great undertaking, began four years ago, has been carried through with characteristic skill and industry. The Commissioner not only conducted hearings throughout Ontario and listened to many organizations and persons. He and his assistants made their own studies in depth of institutions both here and abroad, especially in the Commonwealth and Scandinavia.

By a happy coincidence, our request that he speak to this Club was made only a few hours before the publication of his Report Number 1. It is a state paper of far reaching importance. In three volumes, 1,331 pages and 559 recommendations it touches on fundamental questions affecting the rights and obligations of every individual in Ontario, those who are here now and those yet unborn. Its range and scope are so vast and so complex that I dare not specify any one topic, but I can assure you it will be remembered and studied long after our time.

It is our privilege to hear today from the author of the Report, the Hon. James C. McRuer.

MR. MCRUER:

It is not my intention to give you a book review of the Report of the Royal Commission published last month. That task, I will leave to others. What I wish to do, however, is to discuss for a short time, the philosophy underlying that Report.

Edward H. Brooks in his lectures at Queen's University published under the title Freedom, Faith, and the Twenty-First Century made this penetrating statement:

". . . it is a shattering thought that so much of the world which is moving toward the twenty-first century has no coherent philosophy of the state and yet is willing to entrust so much power to it."

We start with this fundamental principle. Government is the exercise of power over the governed. Apart from being a means of protection against the invader, the whole purpose of the democratic state is to regulate and promote the mutual - and I emphasize mutual - rights, freedoms and liberties of the individuals under its control. But individual rights, liberties and freedoms without mutual obligations is an anarchic concept. In a truly civilized society, the ultimate object of the exercise of state power is to promote justice in social and economic relations among its component parts. Webster expressed this concept in eloquent language:

"Justice is the greatest interest of man on earth. It is the ligament which holds civilized beings and civilized nations together wherever her temple stands, and so long as it is duly honored there is a foundation for social security, general happiness, and the improvement and progress of our race. And whoever labors on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself, in name and fame and character, with that which is and must be as durable as the fame of human society." (Justice and Jurisprudence,

J. B. Lippincott Company, 1889, p. 63.) State power exercised within this concept of justice is something in the nature of a trust conferred on all those in positions of authority, to be exercised for the benefit of the individuals who make up the state and to promote their mutual welfare. If we are to have the ligaments and sinews of justice holding civilized society together there must be law.

The object of the Royal Commission, over which I have the honour to preside, is to strengthen the foundations and pillars of justice by drawing blueprints for im provement of the laws of Ontario as they express the power of the state in its relation to the individual. Laws are not weapons but shields serving to protect and regulate the respective rights, freedoms and liberties of the individuals from whom the authority and power of the state is derived.

It is part of the English Constitution founded in long tradition and established by judicial decision that no man can be punished or deprived of his property except by the established processes of law. Every man, no matter what his rank may be, is subject to the ordinary law and subject to the jurisdiction of courts presided over by independent judges. But these concepts are not sufficient in themselves. They may be sufficient for a sort of definition of rules by law but they do not meet a modern definition of the rule of law. A man may be arbitrarily deprived of his freedom or of his property by processes authorized by law without any safeguards against the exercise of arbitrary power; likewise, a man may suffer grave injustice because the laws in themselves may be unjust or there may be no procedural rules by which they are to be administered or the administration of the laws may be in the hands of careless or inadequately qualified administrators or judges.

Two years ago, I was asked to address the Judicial Section of the American Bar Association on the subject "Current Decline in Respect for Law and Order - Is there a Remedy?" On that occasion, I ventured to challenge the thesis that the body politic of our nation is suffering from any debilitating disease of disrespect for just laws, properly administered or authority justly exercised. Law and authority are not synonymous. Laws that are not based on modern concepts of justice may have to be obeyed but they will not be respected. Authority that is not based on just laws may be obeyed rather than submit to sanctions but it will not be respected and it is not likely to be obeyed if a way of evasion can be found. Laws that invite disobedience are not only bad laws but promote disrespect for all laws. They infect and corrupt the whole machinery of law enforcement.

We have long departed from the Austinian theory that the science of jurisprudence is based on command. The command of the majority to control and direct a minority does not form a sound philosophy of good law. Ninety years ago, Pollock gave us another philosophy of law which may have been revolutionary in his time but it is manifestly sound today. He said:

"We should hardly give the name of Law to a series of unrelated and inconsistent commands, enforced by arbitrary and uncertain methods, although their subject matter might be the same as that of the kind of laws we are used to. The capricious orders of a crazy despot may be laws according to Austin's definition until they are revoked; but if so, it is the worse for the definition."

(Essays in Jurisprudence and Ethics [1882], p. 50.)

What Pollock said in 1882 of capricious orders of a crazy despot applies with equal force in 1968 to laws conferring wide and arbitrary discretionary powers on perfectly sane persons who may by their exercise, deprive individuals of basic rights without any right of appeal. They are laws, but not law. The enlightened mind of the citizen of today, demands something more. It demands law based on moral obligation and a concept of human rights.

Pollock, Professor Goodhart and Dean Pound, all have given us a rich and meaningful philosophy of law, a philosophy of law that will merit and develop respect for law. Pollock said: "Law is not law merely because it is enforced by the state." Professor Goodhart defined law as a rule of human conduct which is recognized as being obligatory, and stated:

"It is essential to draw a clear distinction between obedience to an order or rule and recognition that the rule or order is obligatory, that is, that the order ought to be obeyed. . . . but obedience to an order merely because of the fear of sanctions is nothing more than reaction to naked force and we will seek to avoid obedience wherever possible."

(English Law and the Moral Law, p. 19.)

Dean Pound said:

"Law is the arch enemy of autocracy . . . laws may exist, indeed they do exist in abundance under absolute political regimes; but not law."

(Selection and Tenure of Judges.)

It was Dean Pound's conception of law that would appear to be the philosophy underlying the terms of reference of the Civil Rights Commission. The terms of reference may be paraphrased in this way: to examine the laws of Ontario; to determine how the power of government is exercised; the extent to which there is unjustified encroachment on the civil rights of the governed; and to recommend safeguards that will protect the individual against unwarranted exercise of statutory powers.

In the process of democratic government, there are three, and only three, classes of powers exercised by government, legislative, judicial and executive. Ideally all legislative power should be exercised by members of the legislature or parliamnt; all judicial powers should be exercised by independent judges and all executive powers should be exercised by administrators who merely carry out the orders of the legislators or the judges. Legislative power, in theory, is power to decide policy -what the law should be - what policy should be followed in a certain given set of circumstances. Judicial power is the power to decide what policy has been expressed by the legislature and determine whether the given set of circumstances exist in fact and to apply the law as expressed by the legislature. If they do, the judicial power must be exercised and an order made which must be carried out by the executive. For example, in an ordinary case of murder, Parliament has defined murder, the judge instructs the jury on the law as Parliament has declared it to be; the jury makes the judicial decision whether the facts are such that the act amounts to murder as defined by the law. If they do, the verdict is guilty and the judge applies the law as determined by Parliament and gives the sentence. The judge makes a decision that the conditions precedent have been fulfilled to warrant the imposition of the sentence provided by law - life imprisonment. He makes the order and the sheriffs and wardens execute it.

But human relations in modern society are far too complex for the exercise of all legislative and judicial powers by legislators and judges. Legislators delegate their legislative power to subordinate bodies, judges legislate and judicial powers are conferred on others than judges. This is necessary in order to make the modern democratic system of government work.

The theory underlying democratic government is that when legislators make the law the rights of the individual will be safeguarded through public debate and public vote in the legislature. When the judges administer justice, the civil rights of the individual will be safeguarded by the independence and wisdom of the judges. When subordinate bodies, such as Lieutenant Governor in Council or commissions or boards legislate the safeguards of the rights of the individual provided by public debate and public scrutiny are removed.

When a tribunal is set up to make judicial decisions the safeguards of the independence of the judiciary is likewise removed and often the tribunal tends to lose its judicial character and become an instrument for the interpretation of and the advancement of government policy. In addition, in practice, there are no clear lines of demarcation between legislative, judicial and executive powers. Language is often an imperfect form of communication. When judges construe a statute they legislate. Sometimes their interpretation of a statute may be quite different from what the legislators meant to say but the legislators have power to reverse the decisions of the judges and to clarify their own language.

Ministers, boards, commissioners and inspectors exercise both judicial and legislative power and it is essential to modern government that they do so. It is this practical necessity that gave rise to the appointment of the Royal Commission as an Inquiry into Civil Rights. The terms of reference recognized that there may be laws and procedures that may be unjustified encroachments on the freedoms, rights and liberties of the individual and it was recognized that it is necessary to have rules safeguarding the basic rights, liberties and freedoms of individuals. Our task was two-fold, to recommend a pruning job on the laws and to recommend safeguards against the abuse of necessary power.

In certain cases, we found excessive and unnecessary powers conferred on bodies and individuals. In such cases, we recommend the pruning operation-the limitation or abolition of the powers. In other cases, we found that there were no adequate safeguards against the wrongful exercise of necessary powers. In such cases, we recommended rights of appeal and new procedures as additional safeguards or a simplification of the procedural safeguards that now exist.

One of the underlying philosophies of our Report is that government through its Ministers must assume responsibility for policy and the courts should have the ultimate supervision over the exercise of judicial powers.

Sometimes in the past, Ministers have sought to evade responsibility for policy decisions, by conferring these powers on tribunals and even on judges and rights of appeal to the courts have been created on policy matters, while on the other hand, boards and Ministers have been given power to make judicial decision with no right of appeal. In either case, the individual has been deprived of an elementary right. The democratic process of government demands that policy must be under the ultimate control of the elected representatives of the people and judicial powers must be under the ultimate control of the courts presided over by independent judges. It is for this reason that I am against giving judges wider legislative powers and I am against all private clauses in legislation.

But right of access to the courts as a safeguard against the arbitrary or wrongful exercise of power is not sufficient. An individual has a further right - a right of access to courts presided over by judges of integrity trained in the law and with a capacity to administer justice in the truest sense of that term.

The individual has an additional right, a right to a just, well-defined and simple procedure devoid of vexatious trappings, whether it be in the courts or in the administrative processes of government.

If the courts are to maintain their rightful place as an ultimate guardian of the rights of the individual they must provide simple and expeditious procedures devoid of tech nicalities and within the financial grasp of the humblest individual.

Whether it be in the courts or in the processes of government, it is by procedure that the authority of the law is made known as it touches the life of the individual. Professor Davis quoting three distinguished judges of the Supreme Court of the United States made clear a fundamental truth that is too often obscure to legislators, judges and administrators. The protection of the rights of the individual human being is not so much in the law but in the procedure by which it is administered.

"The essence of justice is largely procedural. Time and again, thoughtful judges have emphasized this truth. Mr. Justice Douglas: 'It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the differences between rule by law and rule my whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.' Mr. Jackson: 'Procedural fairness and regularity are of the indispensable essence of liberty.' Mr. Justice Frankfurter: 'The history of liberty has largely been the history of procedural safeguards'."

(Administrative Law Treatise No. 220.)

The acts of public men in their capacity as legislators, the procedure by which law is administered should be under the critical scrutiny of public opinion. Public opinion may be moulded by what the public sees or by suspicion and rumour when it does not see. The public may see and hear what goes on in the courts as the proceedings may be conveyed to it through the various media of communication: newspapers, the radio and the television. Often little is known of what goes on in the administrative processes of government and the proceedings before tribunals exercising statutory powers. These processes cannot and should not all be carried on in public, but they should follow a just procedure. Whether it be in the courts or before tribunals if the procedure is unjust or there are no procedural rules or there are procedural errors, the law and its administration, no matter how just and wise the law may be, will be held in contempt by those affected by its processes. Good procedure cannot be assured without good rules of procedure. Often vast powers are given to tribunals presided over by laymen with no rules of procedure laid down to be followed. The persons presiding over the tribunals have no means of knowing what procedure should be applied in the jurisdiction they exercise. In certain cases, persons whose rights may be affected are not even given a legal right to be heard and have no right of appeal to anybody. ,

To provide elementary safeguards for basic and fundamental rights of individuals, certain recommendations were made, which if implemented, it is hoped would provide what might be called a procedural Bill of Rights. These recommendations may be summarized as follows:

l. Ministerial responsibility for government policy and rights of appeal to Ministers in the exercise of administrative powers - that is policy decisions;
2. A Statutory Powers Procedure Act laying down certain minimum rules to be followed by all tribunals or bodies exercising administrative or judicial powers;
3. A Statutory Powers Rules Committee to make additional rules of procedure to be followed by individual tribunals;
4. A simplification of the process of review by the courts; and
5. Review by a committee of the legislature of the exercise of all subordinate or delegated legislative power.

The purpose of these recommendations is not to make the processes of government more cumbersome but to simplify its processes. Disciplinary rules will guide those who exercise the power of government. In addition, they will give to the individual his rightful place in the processes of government by extending his right to be heard when the exercise of the power of government encroaches on his fundamental rights and liberties. They will restrict the exercise of arbitrary power.

Some individual statutes contain some inadequate procedural rules and some individual tribunals have formulated their own rules of procedure but there is no statute broadly defining the basic procedure to be followed by statutory tribunals. The main guiding principles are those laid down by judicial decision buried in the Law Reports, difficult to find and apply, even by skilled lawyers.

Justice to those who are called upon to exercise the powers conferred on statutory tribunals and those who are affected by their decisions demands that the legis lature lay down some simple minimal rules of procedure to be followed in all cases so that those exercising the power of decision may know what is required of them.

In addition to the administrative and judicial powers conferred on tribunals it has been a practice to confer wide legislative powers on the Lieutenant-Governor in Council, on commissions, boards and other bodies. This is necessary in modern government but often there is no right of review of subordinate legislation even by the Lieutenant-Governor in Council. When such powers are exercised, laws are often made which when breached render individuals liable to prosecution and even imprisonment without anyone except those involved in declaring the law, having an opportunity of knowing what the law is. We have in this province, an abundance of law made under subordinate legislative authority that no lawyer can find in any publication of any kind. It was the expressed view of the Commission that all law made in the exercise of subordinate legislative powers should be made available in some form or another for public scrutiny and that a committee of the legislature should be established to scrutinize subordinate legislation so that the people's representatives may, at least, have an opportunity of seeing it and submitting their views on it to the legislature. Such a course would not only have a disciplinary effect on the exercise of subordinate legislative power but it would also give the public its right to know, to criticize and to debate.

Now I want to say something about law enforcement. Police power is an essential part of every well regulated society and it should be strengthened where there are weaknesses. It should be reinforced where reinforcement is necessary. Modern scientific developments, new means of communication and transportation have made it easier to commit crime and easier to escape detection. The enforcement of law has become increasingly difficult.

The strongest arm of law enforcement is the conscience of those who live under the protection of the law. The law cannot be efficiently enforced unless the vast majority of the people honour it and respect it. When the police are asked to enforce laws that do not command public respect and which are not generally observed by members of the public including judges, magistrates and even members of the Empire Club alike, the authority and prestige of the police officer and all law enforcement agencies are diminished.

Recommendations we have made with regard to powers of arrest, search and seizure are not intended to, nor will they, if implemented, impair the effectiveness of good law enforcement or the legislative powers of the police. The object of these recommendations is to restore to the police the rightful place in the social life of the community as officers of the law protecting society against the predator. The exercise of power over the liberty of the subject for the protection of individual members of society is a very different thing than the exercise of exactly the same power to enforce a multitude of merely regulatory laws.

When the legislature confers on a police officer the same power to deprive an individual of his liberty by arrest with or without a warrant, with all the attendant circumstances, for a trivial offence warranting a fine of a few dollars as it does in the case of robbery or murder, or to arrest when a summons is all that is required, it alienates the public support for law and law enforcement and undermines the authority of all law.

Our recommendations are directed, not only to make the laws and procedures more just for the individual but we hope to reduce the possibility of injustice in their administration. What we have attempted to do and I hope what we have done, is to focus the attention not only of those who make the laws and those who administer the laws that are made, but those who live under the the laws, that the essential purpose of all law is justice for the individual.

Gentlemen, I conclude where I began, if the society of the future is to be a happy society, we must develop a philosophy of the state and a philosophy for the exercise of the power of the state. General Smuts once said, "The only political philosophy which holds the field is that which recognizes the fundamental ideals of human life in human government, and of these the greatest is liberty." (Quoted by Frankfurter "The Public and Its Government", p. 125.)

The power of the state is not to be exercised as an instrument to enforce authority, but as a means of regulating and promoting the mutual rights, freedoms and lib erties of the individuals that make up the state. Laws are not an end but a means to an end. The end should be the recognition of every individual as an individual human being with a dignity to be respected, with rights to be safeguarded by law and, at the same time, with obligations to his fellow human beings to be observed and where necessary, to be enforced by the authority of the law.

Thanks of the meeting were expressed by Mr. Justice Alexander Stark.