Retroactive Effect of Judicial Decisions in Canada Compared to the United States

It is commonly understood that enacting of laws includes a timing dimension. There is a certain point in time when the law becomes effective. The public is usually given advance notice so they may arrange their affairs accordingly. Sometimes, a law may even regulate conduct that took place before the law was enacted.

In the United States, Article 1 of the Constitution prohibits Congress from passing ex post facto laws. This clause has been judicially interpreted to mean only criminal or penal laws – and, moreover, only those that impose harsher punishment. This means that enacting an ex post facto law that reduces (rather than aggravates) punishment is allowed. It is also common for (non-penal) tax laws to regulate conduct that took place within a few years prior to enactment.

Likewise, in Canada, Section 11(g) of the Charter of Rights and Freedoms prohibits the retroactive application of a criminal law that creates a new offense. There is also a common law (non-constitutional) presumption against interpreting statutes to have retroactive effect (see British Columbia v. Imperial Tobacco Canada Ltd.). However, Canada has no constitutional restriction against enacting laws that aggravates punishment retroactively.

The situation for judicial interpretations is quite different. Lord Blackstone, the eminent English jurist active during the 18th century, argued that judges merely declare the meanings of laws (including statutes and constitutional documents) and these declared meanings should be understood as always having been the correct meaning. If, in the future, the original judicial interpretation should be overturned and a new interpretation declared, then, that meaning should be understood as always having been the correct meaning. Assuming the statute or constitutional documents stand unchanged, the interpretation should attach to their textual meaning and should not vary by the time period when it was made. In other words, the correct textual meanings should not be partitioned into multiple time frames based on the date when the judicial interpretations were declared.

Under Blackstone’s view, judicial interpretations are always retrospective up to the point in the past when the relevant statute or constitutional document was enacted or amended. This implicates the question: if the law is constantly in flux, what should be done about past court decisions that are now demonstrably erroneous, based on the most current law? This relates to the doctrine of res judicata, which is in turn divided into the doctrine of bar & merger (also known as claim preclusion) and collateral estoppel (also known as issue preclusion). Under the bar & merger doctrine, even if a judicial decision retroactively changes the law so that the plaintiff’s claim would be handled differently, the plaintiff may not file suit again on the same cause of action. In contrast, under the collateral estoppel doctrine, if a suit was filed on a different cause of action, a party may take advantage of a change in the law.

Some later jurists doubted the above-described Blackstone’s declaratory theory of judicial interpretation. Judge Benjamin Cardozo said that the “declaratory” understanding of adjudication was merely one of several permissible approaches. Sometimes, courts do engage in law creation and not merely interpretation. When it comes to constitutional law, a court decision will take into account contemporary facts like technology changes. It would not make sense to say that the same reasoning should apply retroactively far into the distant past when such technology did not exist. In that case, the correct meanings of a constitutional document as determined by judicial decisions would indeed have to be partitioned into time frames based on when the decisions were made. It also suggests that when a judge renders a decision, he/she should consider whether this decision is merely intended to clarify a pre-existing rule or whether this decision is a clean break with the past. If the rule is a clean break with the past, the judge might rule that it will only be applicable prospectively not retroactively (with the possible exception of applying to the parties in the case).

Let us begin by discussing civil court decisions. In Hislop v. Canada, the Supreme Court of Canada held: “When the Court is declaring the law as it has existed, then the Blackstonian approach is appropriate and retroactive relief should be granted. On the other hand, when a court is developing new law within the broad confines of the Constitution, it may be appropriate to limit the retroactive effect of its judgment.” This accords with Judge Cardozo’s view: the “declaratory” understanding of adjudication was merely one of several permissible approaches.

When Canadian courts invalidate a statute for unconstitutionality, they often suspend the declaration of invalidity (e.g. for one year) so the government can enact new legislation curing the constitutional defect. That is, suspending the declaration of invalidity urges the legislature to craft a remedy. If the government fails to cure the defect, the court’s declaration of invalidity would apply retroactively, except with leave of the court.

In a famous case, Re Manitoba Language Rights, the Supreme Court of Canada invalidated all the statutes of Manitoba from 1870 until 1985 because they lacked a French version but suspended the declaration of invalidity and continued to do so until Manitoba finally translated all the statutes.

If the plaintiffs solely sought to invalidate the statute without other remedies, then this would not pose a problem. However, if the plaintiffs sought money damages, then a suspension of the declaration of invalidity becomes a pyrrhic victory. Consequently, fewer plaintiffs would come forward in the future to challenge unconstitutional statutes – a case of perverse incentives. However, if the declaration of invalidity were to be immediately effective, resulting in money damages for the plaintiff, then it creates a discrepancy between the plaintiffs and other people who are the same position except for not being a party to the lawsuit. This suggests the Blackstone’s approach better ensures equal treatment. But maybe the equitable doctrine of laches is relevant here – equity aids the vigilant, and not those who slumber on their rights – to explain why the plaintiffs in the case should be treated favorably compared to others.

The situation is quite different in the United States. In Harper v. Virginia Dep’t of Taxation, the lower court applied state retroactivity rules, which allowed a decision to be declared as prospective only. However, the Supreme Court of the United States held that federal retroactivity doctrine prevailed and decisions may not be declared to be prospective only: “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.”

It should be noted that American courts are less likely to fully or partially invalidate statutes, especially outside of a First Amendment challenge, because there is the option of ruling that a law is unconstitutional as applied to a party, rather than unconstitutional on its face. Moreover, as-applied challenges are preferred by the courts out of separation of powers concerns (Wash. State Grange v. Wash. State Republican Party). It has been held, on the other hand, that Canadian courts have no authority to permit unconstitutional laws to remain operative. This is true even if a court can offer a remedy case-by-case (R v. Ferguson).

Now let us turn our attention to criminal law. In the United States, the criminal law retroactivity doctrine is the same as the civil law retroactivity doctrine in so far as the direct review procedure is concerned. That is, when a judicial interpretation changes the law, if a case is on appeal, then the appeals court must apply the new law. But if the direct review procedure is exhausted, then future changes in law do not result in a re-opening of direct review. This is similar to the res judicata doctrine mentioned above.

However, in the United States, there is a collateral attack procedure through the writ of habeas corpus. Here, a change of judicial interpretation after the facts of the case might benefit the detainee even if direct review procedures are exhausted. In Teague v. Lane, the Court held that if a new legal rule is one that alters the range of conduct that the law punishes, or that prohibits “a certain category of punishment for a class of defendants because of their status or offense” (e.g., mentally handicapped people cannot be executed), then full retroactivity is granted, even on collateral attack.

On the other hand, retroactivity is denied on collateral review if the new rule is a clean break with the past or if the new rule is procedural but “does not alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding”, which was held to be a practically impossible threshold to achieve. So, if Fourth Amendment protections are expanded or if sentencing guidelines for a crime is shortened by judicial interpretation, past convictions / sentencing cannot be challenged collaterally.

In Miller v. Alabama, the Court held that mandatory sentences of life without the possibility of parole for juvenile offenders violate the Eighth Amendment’s prohibition against cruel and unusual punishments. A life sentence without the possibility of parole may be imposed but it must not be mandated by statute. This case highlights how the application of Teague may be controversial in marginal cases. The rule in Miller v. Alabama was arguably procedural, since it merely required that certain procedures be carried out before a sentence of life without the possibility of parole may be handed down. Nonetheless, in Montgomery v. Louisiana, which was a collateral attack, the Court held that Miller v. Alabama may be applied to retroactively invalidate the detainee’s sentence.

In Canada, however, collateral attack does not exist. In a prior blog post, we discussed how Canada does not have the crime of felony murder. However, the crime of felony murder was only held to be unconstitutional in R v. Vaillancourt, a case from 1987. Less than a year before the Vaillancourt decision was rendered, the criminal defendant in R v. Sarson pleaded guilty and was convicted for felony murder. After felony murder was held unconstitutional, he later attacked his conviction collaterally but it was held in R v. Sarson: “The statements … concerning habeas corpus under the Charter should not be taken to mean that when an offence is declared unconstitutional, persons who were previously convicted of the offence have a potential s. 7 remedy against their continued incarceration depending on the strength of the evidence against them. Any application for habeas corpus in such circumstances would be precluded by res judicata. The practical problems associated with reopening convictions make it essential to have a rule which permits an accused to contest his conviction throughout the appeals process, but which considers the matter res judicata once all appeals have been exhausted.”

Of course, if the facts of R v. Sarson happened in the United States, invalidation of felony murder would certainly be within the category of rule changes where collateral attacks are allowed under Teague. The Supreme Court of Canada decision certainly appears to be a harsh result for the habeas corpus petitioner. At the very least, the justice system should offer an outcome where the time already served is not considered improper but no additional time should be served if the crime the petitioner was convicted of has already been ruled unconstitutional and (if applicable) the petitioner can be prosecuted again for the same facts under an alternative provision of the Criminal Code before release. This kind of outcome should not outrage the public since one could easily point out that the crime the petitioner was originally convicted of does not even exist anymore.

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