Looking Abroad: The UK’s New Supreme Court Flexes its Muscles on Fundamental Justice

Canadian law students are reminded of their imperial heritage in the many cases they study from the “House of Lords.”  The House of Lords as a judicial institution actually ceased to exist in 2009. The Appellate Committee of the House of Lords, as it was formally known, has been replaced by the new United Kingdom Supreme Court (UKSC).  One of the aims of this reform was greater judicial independence.  At the time, skeptics questioned whether a re-branding would achieve anything.   The UK is in the unusual situation of having an informal constitution whose aim was to bind the monarch, and not Parliament.

Therefore, it is interesting to consider a recent decision in which the UKSC seemingly overrode a statute in spite of this constitutional handicap.   The case of R. v. Hughes, [2013] UKSC 56, dealing with an absolute liability driving offence, will resonate with Canadians, where there have been similar issues encountered in Charter cases.

R. v. Hughes bears a particularly strong resemblance to one of the early landmark Charter cases, Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.   Both dealt with statutes that created absolute liability motoring offences that provided for prison sentences.   It is interesting to see the similarity of outcome achieved by the UKSC, through creative statutory interpretation, even though the UK lacks anything resembling the Charter.

Hughes involved the type of sloppy “tough on crime” legislation that governments sometimes push through because of their political appeal.   The legislation stated that a person “is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road [and] using a motor vehicle while uninsured [or] while disqualified.”

In Hughes, the defendant was an uninsured and unlicensed motorist who was involved in a fatal accident.   However, it was the other driver (who died) that was at fault.  The victim was driving under the influence of heroin after completing a 12 hour night shift at his job at a nuclear power station, and had swerved into the wrong lane.  It was common ground that Hughes had been driving impeccably, and by the ordinary rules of the road he was not at fault.  At first instance, Hughes was acquitted.

The Crown appealed, and the Court of Appeal reversed his acquittal.   The issue is what is meant by “causes” in the statute.  The Court of Appeal felt bound by its own earlier decision that “it was not an element of the offence that the defendant’s driving had to exhibit any fault contributing to the accident.”   (at para. 24).

In the “but for” sense of causation, Hughes had caused the death of the other person, who would not have died at that instant if Hughes had not been driving when he was.   However, as the UKSC pointed out, the usual interpretation of causation is more nuanced than that.  A legally effective cause is generally more than a simple sine qua non cause.   The court held that if Parliament had wanted such a stark view of causation, it should have made this unambiguous.

“This is a statute creating a penal provision, and one of very considerable severity. The offence created is a form of homicide. To label a person a criminal killer of another is of the greatest gravity. The defendant is at risk of imprisonment for a substantial term.”  (para. 26).

It should be noted that the UKSC consciously eschewed a purposive approach to statutory interpretation in its decision.   It quoted a Home Office Consultation Paper that seemed to indicate that the simple interpretation of the legislation was just what the government wanted (at para. 18).   The court went on to enunciate an important principle of interpretation based on a fundamental principle of justice under the rule of law:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights…. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.” (para. 27, quoting Lord Hoffmann from an earlier decision).

The principle of legality has a long lineage,[1] but this substantially expands its scope.  The “passed unnoticed” comment represents a weakening of judicial respect for the legislature.   The purposive approach to statutory interpretation claims to divine what the legislature really wanted.  By contrast, Lord Hoffman’s comment, now approved by the whole UKSC, states baldly that the legislature does not always think things through, and may not know what it wanted. 

The principle of legality is occasionally referred to in Canada as well, in the sense of requiring certainty in criminal law, as in R. v. Legare, 2009 SCC 56, at para. 41, but the stronger UK version has not yet been invoked.   Lord Hoffmann’s approach to the principle of legality was recently adopted by the High Court of Australia, in Attorney-General (SA) v Corporation of the City of Adelaide, [2013] HCA 3, at para. 148.

In its conclusion in Hughes, the UKSC held that, absent an unambiguous statute, a serious criminal offence requires at least some element of fault for a conviction.  Mr. Hughes was not at fault, and his acquittal was restored.

It is interesting to compare this decision with the one in Re B.C. Motor Vehicle Act.   There, Justice Lamer cited the long common law tradition of requiring fault for penal offences:

“At common law imprisonment was reserved for the more serious mens rea offences. However, we are dealing here with statutory offences and the legislation must stand unless it violates s. 7. We cannot, in my view, simply state as a bald proposition that absolute liability and imprisonment cannot co-exist in a statutory context. Legislatures can supersede the common law. The legislature may consider it so important to prevent a particular act from being committed that it absolutely forbids it and, if it is committed, may subject the offender to a penalty whether he has any mens rea or not and whether or not he had any intention of breaking the law. Prior to the Charter such legislation would have been unassailable. Now it must meet the test of s. 7.” (para. 111). 

In that decision, the Supreme Court of Canada (SCC) first ruled that the term “fundamental justice” in  section 7 had substantive meaning that went beyond mere procedural rules.   The B.C. statute violated fundamental justice, and was ruled invalid under the Charter.   Based on the reasoning in R. v. Hughes, the SCC might have been able to reach the same decision even without the Charter.  If the B.C. legislature had wanted somebody to go to jail for driving with a suspended license under every possible situation, even where it was not the driver’s fault that he was unaware of the suspension, it should have said so explicitly.  The existing legislation did not do that.

On a related question, there is an ongoing issue of how much judicial deference to give to legislation that embodies government policy.   That deference has been declining in the McLachlin court, as in the bold statement made by the SCC in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27:

“It may well be appropriate for judges to defer to legislatures on policy matters expressed in particular laws.  But to declare a judicial “no go” zone for an entire right on the ground that it may involve the courts in policy matters is to push deference too far.  Policy itself should reflect Charter rights and values.” (para. 26).

Professor Tucker implies that this decision represents an excursion into judicial policy making, in direct opposition to the anti-union political economy views espoused by the legislature.[2]

Canadian judges accord a high degree of respect to UK decisions that develop the common law.   Statutory interpretation is very much within the sphere of the common law.  In Canada, there remains a key point of uncertainty about the notwithstanding clause in the Charter, and whether it can be used to sustain legislation that violates the principles of fundamental rights.  This may become an issue in some of the unusual legislation being proposed by the Quebec government.   Professor Slattery has argued that the notwithstanding clause cannot be used for such a purpose.[3]

It will be interesting to observe over the coming years if these instances of judicial boldness are isolated incidents or part of a rising trend.   If Lord Hoffmann’s approach to the principle of legality gains influence, statutory drafting would become more challenging.   Statutes might have to be written to include a more complete and detailed statement of the terms and conditions under which they will apply.

The author would like to thank Daniel Mowat-Rose for his comments.