Thursday, October 20, 2016

Sorry Shakespeare: Precedent, Roncarelli, and Misremembering Edwards on #PersonsDay

With apologies to the Bard,[1] I’ve come to the conclusion that in law, sometimes the fault lies not in our stars, but in our stare decisis.  In many ways, legal precedents are less like a north star, fixed in the firmament, and more like an inconstant moon,[2] that waxes and wanes with the passage of time.  Literary and stellar comparisons aside, it is in this last sense that I think a true appreciation of law requires an understanding of its temporal quality.

These effects are apparent in both principle and in practice.    In common law, the principle of stare decisis means taking a legal precedent articulated in earlier cases, and applying it to determine current legal issues.  The effects of this process make law inherently historical in the sense that, to paraphrase David Luban, all legal argument represents an attempt to infuse the past with present meaning.[3]

If legal argument is in part a looking backwards, then it’s also often an attempt to project into the future.  Legal decision-makers apply precedent in current cases.  Sometimes novel factual circumstances or theoretical reinterpretations require that a longstanding holding in law be adapted in new ways.  In this manner, a present legal decision and a fresh precedent can serve as a prospective guide for new jurisprudence. 

This temporal complexity in considering the function of stare decisis is, of course, one that some of the great minds of legal philosophy, like Jeremy Waldron, have considered in some detail, see eg here.  I love, for example, the quote from Schauer that I think captures the spirit of this principle of dynamic interaction in law over time.  He says, “today is not only yesterday’s tomorrow, it is also tomorrow’s yesterday”.[4]  

As a matter of practice in Canada, the dynamic function of stare decisis means that over time the perceived significance of a legal decision may change.  Eric Adams recently presented an interesting example of this phenomena in the context of the famous Roncarelli v Duplessis case.[5]  This decision remains one of the most commonly cited decisions in Canadian public law, though the main reasons why seem to have shifted. 

Today it is most commonly associated with law, constitutionalism and limits on governmental authority.  However, at various times the case has also been highlighted as an example of the limits of provincial legislation or to explain the pre-Charter scope of freedom of religion.  More broadly, for decades in Canadian legal classrooms, the case was used to describe the scope of common-law legal rights.[6]

The perceived significance of a decision can change over time in law, but also in the popular imagination.  This was made very apparent on my social media feed on October 18th, which was the 87th anniversary of another important legal decision in Edwards v Canada (AG).  This case is more commonly know as the Persons Case, because the decision of the British Judicial Committee of the Privy Council interpreted a constitutional provision that only “qualified persons” could be appointed to the Canadian Senate to include women.  The anniversary of this case is popularly referred to by some on social media as #PersonsDay.

Despite that seemingly straightforward description, the popular significance of the case appears somewhat misunderstood.  The most common misperception I saw was that the Persons Case was directly connected to women earning the right to vote, which is categorically untrue. 

Others thought that prior to the case, women in Canada could not hold public office.  While women could not be appointed to the Senate until the legal decision, women held a wide variety of public offices, including as provincial MLAs, judicial officials and as Members of Parliament. 

Others seemed to think that it was only by reason of the Court’s interpretation of the constitutional term “qualified persons” as a requirement for Senatorial appointment, that women were recognized as ‘people’, which is at best, inaccurate.

I was, frankly, a little astounded at the numerous individuals, including several elected Canadian officials, who misstated the importance of the Persons Case in public postings on October 19th, including at least one Member of Parliament, see here, and the current Premier of British Columbia, see here. 

For those interested, the Historica #HeritageMinute video, from the perspective of Emily Murphy, one of the 'Famous Five' in this event, is here.

To be fair though, these politicians were not alone, and there were numerous examples of others who misunderstood or appeared ignorant of what the case actually stands for, see the #PersonsDay tag on Twitter for many more such examples.
In any event, how precedent is remembered popularly and in law, along with how it is sometimes uncertainly applied is one of the things I’ve been thinking a lot about in my research and writing.  In this respect, as someone whose initial training was in history, I was happy to see that #PersonsDay was being celebrated, but also a bit perplexed that the legal importance of the Persons Case appears to be so often misunderstood.

[1] The quote from Shakespeare is more accurately “the fault, dear Brutus, is not in our stars / But in ourselves,” Julius Caesar, Act I, Scene III.
[2] Science fiction fans will know this alludes to Larry Niven’s short story of the same name, in which lunar inconstancy symbolizes change, but also foreshadows a global apocalypse.
[3] David Luban, “Difference Made Legal: The Court and Dr King”, 87 Michigan L R 2152 (1982) as quoted in J Feinberg & J Coleman eds, Philosophy of Law, (Wadsworth/Thompson Learning, Belmont CA, 2000) at 227.
[4] Frederick Schauer, “Precedent”, (1987) 39 Stanford L R, 571 at 575.
[5] Eric M Adams, “Building a Law of Human Rights: Roncarelli v Duplessis in Canadian Constitutional Culture” (2010) 55 McGill LJ 437 which is available online through SSRN <>.
[6] Ibid.

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