Monday, March 26, 2007

Ville de Lévis

Everybody knows the dice are loaded. Everybody rolls with their fingers crossed. Most of us sooner of later picked up that the deal is rotten and the fight was fixed. But even those naive souls who haven't figured any of these things out are aware that it's hard to be fired from a unionized public sector job, particularly in Quebec.

But still, the circumstances of Danny Belleau's reinstatement are hard to believe. Belleau was a cop in a small city in Quebec. Over the holiday season of 2000-2001, he got into a fight with his common law partner, resulting in convictions for threatening to cause death or bodily harm, assault, three counts of improper storing of a firearm and breach of his release conditions when he showed up at her parents place after undertaking not to contact her. In each case, Bellleau pleaded guilty to the criminal charges. He was dismissed from the police force, but an arbitrator reinstated him. The "special circumstances" were that he was in a "morbid mental state" as a result of family problems. Belleau succeeded in having the arbitration award upheld in the Quebec Court of Appeal.

One doesn't need to be a follower of Dr. Thomas Szasz to see that any violent person can get a medical opinion that they were in a "morbid mental state", and even the morbid ought to lock up their guns. Maybe especially. So I sympathize with the Supreme Court of Canada's reversal of the award. But I have some trouble with the reasoning.

As in every administrative law case, the first part of the decision consists of mumbo-jumbo about "standard of review", which must be decided based on the "pragmatic and functional approach." Lay readers are advised to skip this. Bastarache has decided that in deciding whether there is a conflict between statutes, arbitrators are required to be right, but when deciding on how to apply these statutes, they are allowed to be wrong, if they are reasonable, but not if they are patently unreasonable. This is just as stupid as it sounds. Still, there's not much point complaining about the "pragmatic and functional" approach, and it does add to the billable hours.

But on the other major legal issue, on the compatibility of statutory provisions, I think Bastarache has muddied things up once again, and things are not yet so far gone that complaining is pointless. This may have negative consequences for the federation, or just for the coherence of this area of law, depending on how seriously it is taken. Canadian law -- to the Ectomorph's dismay -- has always had a wide view of what laws are compatibile with each other. Laws are only incompatible if it is literally impossible to comply with both. If Law 1 says that A is forbidden and Law 2 says it is obligatory, then there is an incompatibility. But this almost never happens. In the more common case where Law 1 says that A is forbidden, and Law 2 says it is permissible (but not specifically privileged), then the two laws are considered compatible: A is just forbidden. For example, a local prohibtion on the use of a pesticide for cosmetic purposes has been found to be compatible with a regulatory pass for that pesticide by the province. And the same thing can be an offence under any number of laws without creating a conflict.

There were two laws that might have applied to Danny Belleau's employment. One said that criminal conviction for criminal offences (other than summary conviction offences) will lead to dismissal as a police officer, unless there are special circumstances. The other said that a criminal conviction for an offence with a maximum penalty of more than 1 year (which includes almost all non-summary offences) disqualifies a person from employment as a municipal official for 5 years. Belleau, as a muncipal police officer, is in the intersection of the groups to which the two statutes apply. So is his dismissal automatic, or can he show special circumstances? Bastarache decides that the two laws are incompatible because the muncipal official one "effectively" and "pragmatically" denies the right to show special circumstances. Since the cop law is later and more specific, it wins out.

I think the concurring judges have the better of the argument here. The cop law is not trying to create a special right for cops; it is just another type of (almost) automatic dismissal provision. It is possible to be disqualified from municipal employment without being fired as a cop. So there is no incompatibility on the traditional Canadian approach.

These fine doctrinal points matter to federalism. Under the doctrine of preemption, American courts take a wider view of what amounts to incompatibility between two laws. This leads to both floor and ceiling preemption: if there is federal law about, the states are unable to provide for either lower or higher standards. Overlapping jurisdiction means federal authority. In contrast, in Canada, each level of government can fairly easily provide new requirements. Federal paramountcy rarely matters very much in Canada, unlike in the US and Australia.

The good part of this is that it preserves federalism, even as other doctrinal developments make concurrent jurisdiction more and more extensive. The bad part is that it is bad for freedom if "X is permissible, but not obligatory" is the rule that always gives way. As a provincial autonomy sort, I would prefer a real policing of the boundaries of jurisdiction, but since that's unrealistic, I would still want to resist any expansion of incompatibility.

The simpler point -- and the real reason I'm not going to give P&S's coveted "Thumbs Up" to this case -- is that Bastarache didn't even need to go there. The whole court agreed that no special circumstances existed. The wisdom to shut up about tricky doctrinal issues that don't need to be decided -- particularly ones that might upset the balance of the federation -- is an important judicial quality, and was lacking here.

Case Comment of Lévis (City of) v. Fraternité de polciers de Lévis Inc., 2007 SCC 14

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