Vol. 14 No.11 (November 2004), pp.882-888

LIMITING ARBITRARY POWER: THE VAGUENESS DOCTRINE IN CANADIAN CONSTITUTIONAL LAW, by Marc Ribeiro. Vancouver: UBC Press, 2004. 256pp. Hardcover. $85.00.  ISBN: 0-7748-1050-5. Paper $29.95. ISBN: 0-7748-1051-3.

Reviewed by Matthew Hennigar, Department of Political Science, Brock University.

Email: matthew.hennigar@brocku.ca

Shortly after 9/11, in May 2002, the Supreme Court of Canada ruled in two cases in which suspected terrorists challenged the Canadian government’s attempt to deport them for their activities several years before coming to Canada. In SURESH v. CANADA and AHANI v. CANADA, the men in question argued, among other things, that the terms “danger to the security of Canada” and “terrorism” in the deportation provisions of the Immigration Act were unconstitutionally vague. The Court disagreed, citing its 1992 precedent in R. v. NOVA SCOTIA PHARMACEUTICAL SOCIETY (hereafter N.S.P.S.) that a law will only be found unconstitutionally vague “if it so lacks in precision as not to give sufficient guidance for legal debate.”

In this, his first book, Marc Ribeiro—a former Supreme Court law clerk and now a lawyer for the Government of Canada—criticizes this very high threshold for “vagueness” (or, alternatively, the very low threshold for acceptable clarity) erected by the Canadian Supreme Court in 1992. Specifically, Ribeiro argues that this highly deferential and decontextualized approach to vagueness does little to protect the doctrine’s two underlying principles, rooted in the rule of law, which the Court itself identified: providing “fair notice” to those whose conduct may be regulated by the law, and limiting the discretion of law enforcement officials. Furthermore, Ribeiro aims to clarify both the meaning of the Supreme Court’s nascent “void-for-vagueness” doctrine, and its place in Canadian constitutional law—in particular the 1982 Charter of Rights and Freedoms—in response to the Court’s inconsistent approach to the issue.

This is the first book-length treatment of the vagueness doctrine in Canadian law, and Ribeiro provides a rich review of the doctrine’s development in Canada and the U.S., as well as of the Anglo-American common-law concepts of “legality” (preventing “unfair surprise” to individuals affected by a law) and the rule of law that together undergird the vagueness doctrine. I highly recommend the first two chapters of the book, titled “The Principle of Legality” and “The Rule of Law,” to anyone seeking a better understanding of these principles in Britain, the U.S. and Canada. That said, the chapter titles are somewhat confusing, given that legality is typically identified as part of the rule of law; indeed, the Canadian Supreme Court framed the concept this way in N.S.P.S., and Ribeiro himself acknowledges the conceptual “interpenetration” (p.6). To summarize, “legality” is ensured in two ways: offences should be defined by statute rather than by judges, to prevent [*883] ex post facto law-making; and statutes must be prospective in reach. In contrast, the rule of law seeks to limit law enforcement discretion, in order to enhance “evenhandedness in the administration of justice” (p.40), and, accordingly, to reduce the arbitrary use of power.

The chapter on the rule of law is particularly interesting, and captures nicely the theoretical complexity of this principle in Canada. As Ribeiro notes, the rule of law functions not only as a Diceyan administrative law doctrine, but, by virtue of an explicit reference to it in the 1982 Charter’s preamble and an implicit reference in the preamble to the 1867 Constitution Act, as an interpretive principle vis-à-vis constitutional rights, and even, arguably, as an “autonomous” unwritten right. This last interpretation is controversial, to be sure, and while Ribeiro does not fully endorse it, he does express a certain sympathy for deriving autonomous (i.e., justiciable) rights from “implied” rights and non-justiciable constitutional provisions. As we will see, he employs the same logic of constitutional interpretation to the vagueness doctrine in the remaining two chapters, “The Content of the Vagueness Doctrine” and “The Place of the Vagueness Doctrine in the Charter,” and invokes the importance of the rule of law to do so.

Before analyzing Ribeiro’s argument in this regard, however, a summary of the Canadian Supreme Court’s approach to vagueness is necessary. Notably, Ribeiro’s own review of the jurisprudence is considerably more detailed than what appears below, but it is interwoven with his own criticisms and suggestions for change. In the interests of clarity, I will deal with each separately.

As noted earlier, the Supreme Court’s concerns regarding vagueness are animated by a desire to provide fair notice and to curb the arbitrary use of power by law enforcement officials, or, more generally, to strike a balance between the flexibility executive discretion provides and the rule of law’s concerns about predictability and equal treatment. In N.S.P.S., Justice Gonthier, writing for a unanimous court, focused on the substantive dimension of “fair notice.” As opposed to whether individuals know the actual law, the substantive dimension is satisfied if citizens subjectively understand that the law regulates conduct in a manner consistent with the “substratum of values” in society at large. To put this in layperson’s terms, would an individual have a general sense that the conduct the law regulates is widely seen as illegal? However, Gonthier also noted that legislation which is not consistent with the substratum of values could still satisfy fair notice concerns if the government adequately publicized the law in advance of enforcement. With regard to the law enforcement rationale, legislation is unconstitutionally vague if it is “so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute,” as the U.S. Supreme Court ruled in PAPACHRISTOU with respect to Jacksonville’s vagrancy ordinance. Much like absolute liability offences, “automatic conviction” offences leave the accused with no possible way of defending themselves before the court. Based on these factors, the Court concluded that “the doctrine of vagueness can be summed up in one [*884] proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate – that is, for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria.” Moreover, based on the complex demands facing the modern state, and a desire to retain room for judicial interpretation, the Court concluded that the “threshold for finding a law vague is relatively high.

While the goals underlying the vagueness doctrine are reasonable, there is no explicit provision requiring legislative clarity in Canadian constitutional law. Rather, the Court assigns the doctrine secondary status, as an interpretive principle to be applied to other Charter provisions, specifically, internally-limited rights, such as section 7, and the section 1 “reasonable limits” clause. Section 7 of the Charter guarantees the right to life, liberty and security of the person, but also states that governments may limit this right so long as it does so “in accordance with the principles of fundamental justice” (which is left undefined). The Court established in N.S.P.S. that the doctrine of vagueness ranks among the principles of fundamental justice, such that, under s. 7, a “limitation on life, liberty and security of the person would not otherwise be objectionable, but for the vagueness of the impugned law.” Section 1, by contrast, states that the Charter’s rights and freedoms are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Vagueness concerns enter in this context in one of two ways: first, a vague law which otherwise violates a Charter right does not constitute a “limit prescribed by law,” and therefore cannot be saved under s.1; and second, a vague law may also suffer from overbreadth, and therefore be an excessive impairment of Charter rights (under section 1 analysis, or “OAKES test,” there must be proportionality between the rights violation and the legislative objective, which includes that the violation be as minimal as reasonably possible). 

Ribeiro argues, correctly, that the Court’s attempt to clarify the vagueness doctrine in N.S.P.S. was ultimately unsuccessful, because of both inconsistencies in Gonthier’s reasoning, and the failure of the Supreme Court (as well as lower courts) to adhere in subsequent rulings to the standards laid down in 1992. Ribeiro identifies at least four major problems with the judiciary’s approach to vagueness:

(1) The ambiguous relationship between the “legal debate” and “substratum of values” tests. Gonthier’s phrasing in one part of the decision suggests that a finding of vagueness requires more than simply textual imprecision, but also inconsistency with social values. However, the “legal debate” standard, cited later, seems to render the “social values” issue irrelevant. Perhaps reflecting this confusion, in later rulings, the Court justifies upholding legislation which is textually vague (CANADIAN PACIFIC) and retroactive (FINTA) on the basis of the laws’ consistency with public values.

(2) There is a tension between some judicial remedies for vagueness (or other rights violations, for that matter) and the principle of legality; namely, that when judges apply the remedy of “reading down” or “reading in” (effectively [*885] rewriting the legislation) to the case at hand, they are engaging in ex post facto lawmaking.

(3) Most importantly for Ribeiro, the Court’s approach to vagueness in 1992 was both too timid and too rigid, largely because it was also too decontextualized. In its place, he urges judges to employ a “balanced” approach that incorporates at least four “modulating” criteria “which have the capacity to make the requirement of precision fluctuate depending on the circumstances of each legislative scheme”: the presence of a “substratum of values”; the likelihood of selective enforcement by officials; the issue of “reasonable necessity” (that is, some policy areas will require greater precision than others); and the type of law involved, where “the requirement of precision will be more stringent in relation to laws that have a coercive aspect, mostly penal laws” (p.104).

(4) Although, as noted above, Gonthier assigned the vagueness doctrine only secondary status as an interpretive principle, subsequent judicial rulings have sent a mixed message on whether vagueness is an “autonomous” right, with application not just to all coercive laws (those entailing incarceration or fines) but all types of enactments, including civil and administrative law. For his part, Ribeiro does not come down definitively on one side or the other. He acknowledges that precedent augurs against treating vagueness as a new justiciable right, but also argues for the opposite, invoking the implied bill of rights theory and “the strong legal status of the Rule of Law” (p.63) to “fill in the gaps” in the constitution.

While Ribeiro’s review of the court’s jurisprudence is thorough and informative, it will not be the most interesting aspect of the book to political scientists. Rather, I suspect that they, like this reviewer, will be more interested in the implications of Ribeiro’s argument for the institutional authority of the judiciary to craft new justiciable rights, and relatedly, for the role of courts in reviewing the public policy choices of the legislative branch. With this in mind, the most provocative aspect of the book is the author’s endorsement of judicial rights-creation based on unwritten principles, whether framed as a secondary “interpretive principle” or “autonomous right.” This situates his argument squarely within the larger contest between interpretivists who urge fidelity to clear constitutional text and non-interpretivists who adhere to the “penumbra” or “living tree” (to use the Canadian parlance) doctrines. As this issue has been thoroughly debated elsewhere, I will not endeavour to repeat it here; suffice it to say that one’s receptivity to Ribeiro’s argument will depend on one’s stance on that bigger question.

That said, it bears noting that what Ribeiro proposes with respect to the vagueness doctrine can be distinguished from judicial activism, defined in normatively-neutral terms as the judiciary’s willingness to substitute its own judgment for that of the legislative and executive branches. Ribeiro seems most concerned with urging greater legislative precision at the time of drafting, for example, through the inclusion of examples and guiding principles, or even delegating to administrators the task of generating such principles through a transparent [*886] process of public consultation, before initiating enforcement. As such, the ultimate goal of the vagueness doctrine is to encourage greater legislative control over the executive branch. Judicial invalidation for vagueness is thus presented as a last resort for dealing with what may amount to legislative laziness. However, the courts would stray into illegitimate use of the vagueness doctrine, by this logic, if they then attempted to tell parliament WHAT these “guiding principles” should be, or how they should be weighted. That would cross the line into legislating, and curtail LEGISLATIVE, not simply executive, discretion.

A more basic question that occurred to me repeatedly while reading this book was whether, even if you accept the underlying non-interpretivist argument, a new “autonomous” right against vagueness is really necessary. Ribeiro’s primary concern seems to be that the Court’s existing approach limits the doctrine’s use to cases involving internally-limited rights or section 1 analysis. To clarify, under current precedent, vagueness can only be raised in cases that do not involve internally-limited rights in the context of section 1, which will not be reached if there is no breach of ANOTHER Charter right. There are at least three responses to this concern. First, “externally-limited” rights (such as freedom of expression in Canada) have been defined so broadly by the Supreme Court of Canada that such rights are “barely policed ports of entry into section 1,” to borrow a phrase from the federal government’s lawyer in RAMSDEN v. PETERBOROUGH (Milosevic, p.5). Second, if, as Ribeiro advocates, the Court lowered the threshold for successful claims of vagueness in the context of internally-limited rights, lawyers could easily adjust their legal arguments accordingly. For example, a freedom of expression (externally-limited right) claim against a vaguely worded anti-obscenity provision enforced through incarceration could just as easily be cast as a section 7 “right to life, liberty and security of the person” (internally-limited right) claim. Finally, an autonomous right against vagueness would create conceptual confusion vis-à-vis section 1. Post-Oakes, any legislation that violates a Charter right must undergo section 1 “reasonable limits” analysis. However, the Court indicated in N.S.P.S. that vagueness concerns should be addressed (for externally-limited rights) in the context of section 1, most notably, the requirement that limits on rights be “prescribed by law” and constitute a “minimal impairment” of the right. If the right in question is an autonomous right against vagueness, then it seems logical to conclude that the government could never justify a vague law under section 1. The right against vagueness would therefore be absolute, in contrast to every other Charter right. That this would be the case for any right is troubling, let alone a judicially-created right.

Shifting to Ribeiro’s preference for a “balanced” approach to vagueness, it ironically threatens the very rule of law principle that animates the vagueness doctrine, by maximizing judicial discretion. As British legal theorist Jeffrey Goldsworthy (2001) argues, the rule of law aims to limit the STATE’S discretionary authority, and the judiciary is as much an organ of the state as the legislature or executive. As such, enhancing judicial discretion reduces [*887] predictability and increases the potential for unequal application of the law (and judges have, unfortunately, proven that they are not immune to discriminatory attitudes).

Finally, the author could have broadened the book’s appeal to a political science audience by linking the vagueness doctrine to contemporary political issues; for example, as I alluded to at the beginning of this essay, anti-terrorism legislation, or the routine efforts of police in Canada and the U.S. to silence legitimate (i.e., otherwise lawful) political protests against globalization and political leaders, on the basis of extremely vague provisions such as “preventing a breach of the peace” or “causing a disturbance.”

Overall, the book contains a densely-packed legal argument, with a thorough recounting of the case law on vagueness, legality, and the rule of law. This historical and jurisprudential overview is the book’s greatest strength. The author’s argument, while cogent, is more problematic. The book is ultimately written as an appeal to judges to reform their approach to vagueness, and in this sense it is an extended factum (or “brief”). Indeed, the book’s argument is structured in much the same way as legal arguments to the Court: there is a “hard argument,” that would establish an new autonomous right and largely unfettered judicial authority to create other new constitutional rights; and simultaneously, there is a “soft” or easier argument, that judges should simply amend their approach to vagueness, but within the existing jurisprudential framework created by the Court. While the author attempts to distinguish these two arguments, the complexity of the legal doctrines and case law may leave the reader wondering exactly which the author endorses. That said, I suspect this difficulty will arise among the social science audience more so than within the legal community, given the latter’s familiarity with this style of argument. Thus, while it is a valuable resource for political scientists interested in a nascent legal doctrine (or a much older one, the rule of law), the book’s primary appeal will be to legal theorists.

REFERENCES:

Goldsworthy, Jeffrey. 2001. “Legislative Sovereignty and the Rule of Law.” In Sceptical Essays on Human Rights, ed. Tom Campbell, K. D. Ewing and Adam Tomkins. Oxford: Oxford University Press. Pp. 61-78.

Milosevic, Yvonne. 1992. Attorney General of Canada Factum in RAMSDEN v. PETERBOROUGH, 2 S.C.R. 1084 (1993), Supreme Court of Canada file no. 22787.

CASE REFERENCES:

AHANI v. CANADA, 1 S.C.R. 72 (2002).

PAPACHRISTOU v. CITY OF JACKSONVILLE, 405 U.S. 156 (1972).

ONTARIO v. CANADIAN PACIFIC LTD, 2 S.C.R. 1031 (1995).

R. v. BUTLER, 1 S.C.R. 452 (1992).

R. v. FINTA, 1 S.C.R. 701 (1994).

R. v. NOVA SCOTIA PHARMACEUTICAL SOCIETY, 2 S.C.R. 606 (1992). [*888]

R. v. OAKES, 1 S.C.R. 103 (1986).

SURESH v. CANADA, 1 S.C.R. 3 (2002).

************************************************************

© Copyright 2004 by the author, Matthew Hennigar.