When Is a Rule a Precedent?
- May 12, 2018
- Clayton Rice, K.C.
On April 18, 2018, the Alberta Court of Appeal released the Memorandum of Judgment in R v Pucci, 2018 ABCA 149 where the Crown brought an application for reconsideration of the rule in R v Gladue, 2012 ABCA 143 that arises, most often, in drug investigations. Speaking for a unanimous panel in Gladue, Justice Peter Costigan stated the rule, at para 9:
“Entrapment may be found when “the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry”: Mack  2 SCR 903 at 964. The bona fide inquiry exception permits the police to present an opportunity to commit a crime to a person associated with a location where it is reasonably suspected that criminal activity is taking place: Barnes  1 SCR 449 at 461. Although a reasonable suspicion that a person is engaged in criminal activity can be developed during the course of an investigation of a tip, it must exist before the opportunity to commit an offence is provided: R v Imoro, 2010 ONCA 122 at para 16, 251 CCC (3d) 131 aff’d 2010 SCC 50,  3 SCR 62.”
The Crown argued that new developments in the case law support the view that, if the content of a telephone call initiated by an undercover police officer reveals that the person on the other end understands drug jargon and seems prepared to deal in drugs, the reasonable suspicion standard can be met during the call before the opportunity is provided. The Pucci court dismissed the Crown’s application which brings me to the questions in this post: (a) what is a rule? and (b) what is a precedent? The answer to both questions may not be the same in Alberta. And it should be.
The panel in Pucci was unanimous but in two separate opinions. The majority opinion of Justice Jack Watson and Justice Thomas Wakeling affirmed the rule for sound policy reasons, at paras 4 and 12, that I will condense this way:
“The ‘bona fide inquiry’ test – which embodies a requirement of pre-existing reasonable suspicion – is a feature of the rule of law. That is because it operates to serve two key but distinct goals of our legal order: (a) protecting individuals from groundless and standardless state agent investigations that are in the form of random virtue testing and (b) discouraging the creation of crime by the conduct of state agency. The reasonable suspicion requirement is not a heavy price to pay to uphold the relevant aspects of the rule of law in this province.”
In separate reasons, Justice Ronald Berger stated, at para 13, that he was “substantially in agreement with the reasons of the majority”. That, then, answered the question: what is a rule? Or, in this specific case: what is the rule in Pucci? The majority and minority were in agreement on what the rule is and how the dispute was to be decided. The rule in Gladue was unanimously affirmed. However, Justice Berger went on, at para 14, to address his concern for the “lingering mistaken impression” flowing from the court’s “artificial protocol” attaching greater significance to opinions labelled “Reasons for Judgment Reserved”. That leads to the second question: what is a precedent?
Let’s start with the basic tenets of the orthodox doctrine of precedent. Every case lays down a rule – the rule of the case. The express reason, or the rationale for the decision, is prima facie the rule of the case – the ratio decidendi. Professor Karl Llewellyn, in his classic lectures for first year law students at Columbia University titled The Bramble Bush (1930) said this, at p 39:
“The court can decide only the particular dispute before it. When it speaks to that question it speaks ex cathedra, with authority, with finality. When it speaks to the question before it, it announces law, and if what it announces is new, it legislates, it makes law. But when it speaks to any other question at all, it says mere words, which no man needs to follow. Are such words worthless? They are not. We know them as judicial dicta; when they are wholly off the point at issue we call them obiter dicta – words dropped along the road, wayside remarks. Yet even wayside remarks shed light on the remarker. They may be very useful in the future to him, or to us.”
However, the practice has developed in the Alberta Court of Appeal of labelling judgments as “Memorandum of Judgment” and “Reasons for Judgment Reserved”. Justice Berger therefore noted, at para 17, that “[i]t is sometimes suggested that a judgment issued under the label ‘Memorandum of Judgment’ has not been given the same amount of thought as one labelled ‘Reasons for Judgment Reserved’.” In Pucci, the Crown had argued that “Gladue was not a reserved, circulated judgment” and the respondent conceded that “the presidential value of the Gladue case and its corresponding influence on other courts as binding precedent is low”. Yet, as Justice Berger wryly observed, neither counsel during oral argument could “shed much light” on what happens when a draft judgment is circulated to judges off the panel. Justice Berger’s opinion here may be dicta – but it’s very useful to me!
The labelling of judgments is incompatible with the doctrine of precedent and may create uncertainty in the law. The practice is incompatible with a precedent-based legal system because it is inconsistent with the doctrine of stare decisis – when a court has decided a principle of law applicable to certain facts, it will apply that principle to all future cases where the facts are substantially the same. Even oral judgments decide disputes and announce law. The reasons in Gladue itself were delivered orally.
The practice may create uncertainty in the law because it fosters muddiness for trial courts which daily grapple with the stuff of precedent. It is also apparent that the practice among members of the Court of Appeal regarding reserved judgments is inconsistent. Judges off the panel may or may not read the facta, may or may not listen to the tape of oral argument and may or may not comment on draft judgments. Most importantly, as Justice Berger went on to state, at para 17, irrespective of comments from other judges “the panel that heard the appeal has absolute, exclusive jurisdiction to pronounce judgment” and “neither the time nor the depth of deliberation is in any way reflected by the label affixed to the front page”.
Let’s look at the labels on Gladue and Pucci. Both are labelled as “Memorandum”. What exactly does that mean? A wag might suggest that, presumably, the rule received about the “same amount of thought” in Pucci as the original panel gave it in Gladue! Therefore, the affirmation of the rule in Pucci is of less presidential value. Is not the opposite so? The rule in Gladue is strengthened by affirmation in Pucci – not diminished by it. The rule is: Entrapment may be found when the police provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry. That is the dispute that was decided irrespective of the label on the judgment. That is the law announced by the Gladue court. Justice Berger went on to say this, at para 17: “The presidential value and binding effect of a judgment is to be found in its content not in its label. It follows that it is a fallacy and, I suggest, a fundamental error, to assert that a judgment labelled ‘Reasons for Judgment Reserved’ has any greater presidential value or binding effect than any other judgment of the Court, however labelled.”
I will leave you back in The Bramble Bush with Professor Llewellyn, at p 5: “Actual disputes call for somebody to do something about them. First, so that there may be peace, for the disputants; for other persons whose ears and toes disputants are disturbing. And secondly, so that the dispute may really be put at rest, which means, so that a solution may be achieved which, at least in the main, is bearable to the parties and not disgusting to the lookers-on. This doing of something about disputes, this doing of it reasonably, is the business of law. And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itself.”