Course:Law3020/2014WT1/Group W

Facts


Manish Odhavji was fatally shot on September 26, 1997 while fleeing from his vehicle after a bank robbery, SIU investigation started but officers involved did not comply with requests from SIU to remain segregated, provide on-duty clothing, shift notes, and blood samples.

The Plaintiff (his estate and immediate family members) claimed that the police officers’ failure to cooperate with the SIU gave rise to actions for misfeasance in a public office against the officers and the Chief of Police, and to actions for negligence against the Chief, the Metropolitan Toronto Police Services Board, and the Province.

The Plaintiff's statement of claim alleges mental distress, anger, depression and anxiety as a consequence of the alleged misconduct, but the plaintiffs will have to prove at trial that the alleged misconduct caused anxiety or depression of sufficient magnitude to warrant compensation.

The defendants brought motions under rule 21.01(1)(b) of the Ontario Rules of Civil Procedure to strike out the claims on the ground that they disclose no reasonable cause of action. The motions judge and the Court of Appeal struck out portions of the statement of claim.

Judicial History of Odhavji Estate v. Woodhouse
Ontario Court (General Division), [1998] O.J. No. 5426 (QL):


 * 1) Action for negligent supervision against police chief was allowed to proceed
 * 2) Action for negligent supervision against the Metropolitan Toronto Police Services Board
 * 3) Action for negligent supervision against the Province of Ontario could succeed

Ontario Court of Appeal (2000), 52 O.R. (3d) 181:


 * 1) Action for misfeasance in a public office against the police chief was not allowed to proceeed
 * 2) Action for misfeasance in a public office against the police officers was also not allowed to proceeed
 * 3) Action for negligent supervision against the police chief was allowed to proceed
 * 4) Action for negligent supervision against the Metropolitan Toronto Police Services Board was not allowed to proceed
 * 5) Action for negligent supervision against the Province of Ontario was not allowed to proceed

In this Court, the plaintiffs appeal against the Court of Appeal’s decision to strike the claims for misfeasance in a public office against the police officers and the police chief, and the claims for negligence against the Board and the Province. The police chief cross-appeals the Court of Appeal’s decision to allow an action for negligence against him.

Supreme Court of Canada, [2003] 3 SCR:


 * 1) Action for misfeasance in a public office against the police chief was allowed to proceeed
 * 2) Action for misfeasance in a public office against the police officers was also allowed to proceeed
 * 3) Action for negligent supervision against the Metropolitan Toronto Police Services Board was not allowed to proceed
 * 4) Action for negligent supervision against the Province of Ontario was not allowed to proceed
 * 5) Police chief's cross-appeal against the Court of Appeal's decision to allow an action for negligence against him was dismissed

Relevant Provisions
'Action against Chief ' Police Services Act s.41(1)(b):

41. (1)  The duties of a chief of police include,

(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;

Tort of misfeasance in a public office

''"The failure of a public officer to perform a statutory duty can constitute misfeasance in a public office. Misfeasance is not limited to unlawful exercises of statutory or prerogative powers. It is an intentional tort distinguished by:


 * 1) deliberate, unlawful conduct in the exercise of public functions; and


 * 1) awareness that the conduct is unlawful and likely to injure the plaintiff.

The requirement that the defendant must have been aware that his or her unlawful conduct would harm the plaintiff establishes the required nexus between the parties. A plaintiff must also prove the requirements common to all torts, specifically, that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.

Natural Law - St. Thomas Aquinas


Natural Theory Law, as largely formulated by St. Thomas Aquinas, is chiefly concerned with law as it is linked to morality and the common good. Natural Law transcends time and human development, and derives from a higher, non-human source. For Aquinas, this source is divine. Subsequently, morality and ‘true law’ are seen as interchangeable in reality and synonymous in function. A ‘true law’ is adhered to, not because it was developed by human reason or evolvement, but because it is moral, just, and fair. As such, Natural Law exists and is followed to further the ‘common good’ as determined by morality. Teleologically, Aquinas saw morality and the ‘common good’ as essentially both the end and proper function of Natural Law.

The fundamental elements of Natural Law are:


 * 1) Directed to Common Good - Order Imposed By Law
 * 2) Follow Practical Reason
 * 3) Must be Made by Valid Lawmaker
 * 4) Must be Promulgated

Natural Law Application:

In the Canadian context, the theory of Natural Law as purported by Aquinas is not initially evident. For starters, a plethora of interpretations surrounding the ‘common good’ dot our diversified and individualized landscape. The range of political ideologies, religions, and personal convictions innately attribute to this. Nonetheless, in light of s. 52 of the Constitution and ‘Charter values’, Canadians, in a sense, enjoy a higher, transcendent source of law. As the ‘supreme law of the land’ the Constitution restricts statute and common law from being opposed to the ‘Canadianized’ version of the common good. Charter limits provide the means by which morality, justice and fairness are upheld to the utility of all. Any ‘unjust’ law not directed towards the common good purported in the Constitution can, and should, be struck down. While the principles of Natural Law are static, human-made laws develop over time and space to maintain relevance in society. Natural Law theorists would suggest these human-made directives must be in line with the principles of Natural Law, namely the ‘common good’, to be legitimate ‘true laws’. This falls in line with the Constitution, as the Natural Law in Canada, which allows for the development of new statute and common law so long as they align with its purpose.

1. To The Common Good

In application to Odhavji Estate v. Woodhouse, the tort of misfeasance in a public office is a step towards aligning the common law with the Constitution. A logical analysis addresses the four fundamental elements of Natural Law in light of the 'Canadian common good'. To start, the tort of misfeasance of public office is aimed at holding public officials accountable to society, and maintaining the confidence of society in the executive branch. As such, the law is not directed to the good of a specific individual (public officials), but to the good of all. A prime example of the ‘rule of law’ in action, misfeasance of public office perfectly exhibits a law directed at the common good.

2. Follow Practical Reason

Secondly, Aquinas requires that ‘true laws’ follow practical reason. Here the common law must follow practical steps in fulfilling the ends purported by it, namely the common good. As stated by Iacobucci J, the tort for misfeasance in a public office carries a broad interpretation of “unlawful conduct in the exercise of public functions generally.” (para 17). Despite the expansive nature of this tort, Odhavji has provided two practical elements to be considered that direct public officials towards the common good. While not narrow or explicit practical steps, these two elements show what is required for the tort of public misfeasance, and point public officials as to what conduct should be avoided. They are as follows:


 * “First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff.” (para 23)

It is likely, therefore, that Aquinas would agree with the common law tort of misfeasance in public office as following practical reason that direct society toward the teleological end of the common good.

3. Valid Lawmaker

Aquinas’ third element of a valid law requires a valid lawmaker. As his source of law is divine, Aquinas naturally attributes validity to lawmakers chosen and placed by God. With respect to Odhavji, a common law tort case, it is unlikely the judges as lawmakers would satisfy this requirement. The preference of a divinely chosen lawmaker is especially important considering that one lawmaker will very likely know what the common good (morality) is. On the other hand, a multitude of judges chosen by the people are unlikely to hold similar conceptions of the common good, likely forcing the creation of contradictory laws and interpretations. Given the vast broadness of this tort, and the room left for interpretation, it is even more likely Aquinas would invalidate this law as being ‘true’ Natural Law.

4. Law is Promulgated

Finally, the law must be promulgated. While not a specific statute, the tort of misfeasance while in a public office is written in the common law and available to all. However, as the common law continues to make changes and progress (even if microscopically), public members that do not keep tabs on court rulings, or those unable to speak in legal jargon are left to a disadvantage. Therefore, as with the third step, it is likely Aquinas would be reluctant to consider this a ‘true law.’

Legal Positivism
As each legal positivist philosopher discussed in this course differs slightly in their methods of evaluating legal or moral validity, the relevant provisions of Odhavji will be evaluated separately.

Utilitarianism - Jeremy Bentham (1748-1832)


Jeremy Bentham was a prominent legal philosopher, and is widely regarded today as the founder of modern utilitarianism. Bentham strongly opposed concepts of morality espoused by natural law theory commonly accepted at the time, famously branding them as "nonsense upon stilts".

Dispensing with the idea that the source and legitimacy of a law is divine in nature, Bentham proposed instead that a law's morality and legitimacy should be measured by its utilitarian value, which he defined as a law’s ability to achieve the greatest amount of happiness for the largest number of individuals.

Drawing from the writings of Joseph Priestley, Bentham wrote in A Fragment of Government that "the measure of right and wrong" is "the greatest happiness of the greatest number".

Accordingly, the pursuit of individual happiness cannot be justified if this causes more pain to others. Punishment meted out through legislation will also not be justified, if the pain it causes does not outweigh the pleasure it creates.

Application to Odhavji (Police Services Act)

In the present case, the provision in the Ontario Police Services Act s.41(1)(b) defines the chief of police’s duties, which is to ensure that members of the police force “carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force”.

The purpose of the law is to ensure that the needs of the public that fall under the Ontario Police’s jurisdiction, are well taken care of. In order for this to be possible, the police officers must be well disciplined so that the rights and freedoms of the individuals that make up the general public are protected and that laws are enforced fairly and consistently.

All of this is the responsibility of the police chief, who would arguably suffer from the stress and liability of ensuring that the police officer under his/her command are behaving as they should.

The police officers can also be said to suffer somewhat from the discipline they have to maintain and the duty they have to shoulder in protecting the Charter interests of the public.

Both the chief of police and most police officers are liable to be suspended, terminated, demoted or have pay forfeited, should they be found to be guilty of misconduct as defined under s.80 of the Act, for which the punishments are set out in s.85.

Although a small percentage of the general public engaging in criminal activity may suffer as a result of this act requiring police officers to discharge their duties, the large majority of the general public which outnumber the police officers and criminals would enjoy the benefits of this social arrangement.

Application to Odhavji (Tort of Misfeasance in a Public Office)

The second relevant provision is the tort of misfeasance, and the purpose of this tort is to ensure that public officers carry out the duties they are statutorily obliged to perform, and that they do not abuse the power and authority they possess to unlawfully harm the plaintiff.

In the present case, the “pain” suffered by the civil liability imposed on the police officers involved, can be said to be miniscule compared to the benefits and resulting happiness that both the plaintiffs and the general public would enjoy in seeing the unlawful conduct of the police officers punished.

Jeremy Bentham would likely conclude that both the relevant provisions in the Ontario Police Services Act and the tort of misfeasance action brought against the police officers, are legally and morally valid.

Classical Legal Positivism - John Austin (1790-1859)


Legal positivism differs from natural law primarily in its assertion that morality and legality are separate considerations when evaluating the validity of a law in question. Rather than presupposing that law is morality created by God and filtered through humankind’s nature and ability to reason, legal positivism evaluates the legitimacy of a law from the authority of its lawmaker and the process through which it was enacted.

Therefore, a law that is immoral cannot be a law according to natural law theory, but the same law can be simultaneously immoral but legal or vice versa, when viewed through a legal positivist perspective.

According to John Austin, there are three types of directives (law), as follows:


 * 1) God's Law – directives set out in religious texts that govern human conduct
 * 2) Positive Morality – cultural or social norms of behaviour, dress codes, international law
 * 3) Positive Law – directives set out by superiors to subordinates with the backing of sanctions for failing to abide by them

In order for a law to be valid, it must meet the following criteria:


 * 1) The command must be issued by a sovereign
 * 2) The command must be backed by threats of punishments
 * 3) The command must be habitually obeyed

Application to Odhavji (Police Services Act)

The relevant sections of the Police Services Act would fall under the positive law category.

The Act itself came into force after undergoing the legislative process, which involves the Senate and the House of Commons.

Although the Cabinet ministers involved in the passing of the Act can be said to be a sovereign body, the Constitution Acts, 1867 to 1982, accorded the legislative powers they held to them.

The “sovereign” as defined by Austin is difficult to determine in a Canadian legislative context and as such the evaluation of the Police Services Act is unlikely to satisfy the first of Austin’s three criterion.

The Act will meet the Austin’s second criterion, as s.85 of the Act lays out the penalties for police officers (which includes the chief of police per the Act) who fail to abide by the code of conduct set out by the Act.

The Act can be inferred to meet the third step, as the case itself is proof that failure of a police officer to obey the Act will result in legal action. However, the failure of the police officers to submit to the SIU investigators can also be argued to support the opposite conclusion.

Regardless, Austin’s definition of a valid law is difficult to apply in a present-day Canadian context, and it is likely Austin himself would be unsure how his theory would apply to the Police Services Act.

Application to Odhavji (Tort of Misfeasance in a Public Office)

The tort of misfeasance as a part of common law is in effect established and refined by a panel of judges convened over time and space. Although judges enjoy much autonomy in a British and Canadian context, they are not entirely “unbound” in a manner that a sovereign as defined by Austin would be.

Judges in the UK and Canada are currently appointed by a committee or commission, based on their prior judicial competence and performance. Although British judicial appointments were more opaque and seemingly arbitrary before the Constitution Reform Act 2005, this would only strengthen the argument Austin would consider judges to be a “sovereign”.

A defendant guilty of a tort of misfeasance would be entitled to remedies, which would satisfy Austin’s second criterion.

The third criterion would likely be met by the inference that the misconduct of the police officers is not common, or at least unacceptable when brought to trial.

Austin would therefore likely conclude that the tort of misfeasance in a public office is a valid law.

Post-WWII Legal Positivism - HLA Hart (1907-1992)
Herbert Lionel Adolphus Hart (HLA Hart) was a 20th century legal philosopher, who opposed John Austin’s criteria for a valid law, in his book The Concept of Law.

In opposition to John Austin’s characterization of valid laws as arbitrary commands backed by threats of sanction, HLA Hart categorized laws into primary and secondary rules in the following manner:


 * 1) Primary Rule – governs behaviour (what we can and cannot do)
 * 2) Secondary Rule – procedural rules by which primary rules can be created, changed, defined, struck down, etc)

One of the secondary rules is the Rule of Recognition, which is Hart’s litmus test for the validity of any legal system or law. For a law to be valid or ‘recognized’, the officials responsible for enforcing it must do so consistently, and they must subjectively recognize or believe in the rule’s legitimacy and their obligation to enforce it.

Application to Odhavji (Police Services Act & Tort of Misfeasance in a Public Office)

The Police Services Act governs the behaviour of police officers and the chief of police, and the tort of misfeasance imposes an obligation on public officers to perform their duties lawfully, hence both provisions would be primary rules as defined by Hart.

In the present case, the chief of police was responsible for ensuring the police officers under his charge carried out their duties to meet the public’s needs, and that discipline was maintained. The chief of police’s conduct, is in turn enforced by a Municipal Police Service Board or the Ontario Civilian Police Commission.

Although the chief of police and the police officers involved in the shooting failed to discharge their duties, this could be argued to be an aberration rather than part of a general disregard for the Police Services Act.

The decision of the Supreme Court of Canada to allow the actions for misfeasance in a public office against both the chief of police and the police officers, would be a prima facie demonstration of the responsible officials enforcing both the Act and the tort.

Service Conception - Joseph Raz (1939-)


Joseph Raz obtained his Doctor of Philosophy at Oxford University, where he was a student of HLA Hart. Although Raz is one of the most prominent advocates of legal positivism, he disagrees with Hart on some issues, one of which is how a law’s claim to authority can be justified.

According to Raz’s “service conception” of legal authority, a claim of authority is justified when the law actually improves its subject’s behaviour in a way that wasn’t possible without the law’s guidance.

Application to Odhavji

The Supreme Court of Canada allowed the tort of misfeasance in a public office against the chief of police and the police officers to proceed, based on a breach of their statutory duties defined by the Police Service Act.

Although the chief of police and the police officers did not benefit from the court’s decision, the enforcement of both the Act and the tort of misfeasance in a public office benefits society, by restoring the public’s faith in the police and ensuring the police are held to a high standard of conduct.

Police officers who already maintain good conduct can also be argued to benefit by having their good behaviour affirmed through the punishment of misbehaving police officers.

Separation Thesis - HLA Hart
Legal Positivist Foundation

Hart’s Separation Thesis’ underlying theme is that law and morality are separate systems which have two different sets of rules and standards. Similar to legal positivists such as Austin, Hart believes law and morality should not be interchanged but should be kept distinct. However, he also seeks to distinguish the separation thesis from traditional legal positivism in that law and morality, although distinct systems, can interrelate with one another and will in fact usually run parallel to one another. This is not to say that the rule should be grounded in morality though as Lon Fuller would argue, but rather that morality and law would overlap. What makes a legal rule legitimate is that it is grounded in the rule of recognition- meaning that the rule has to be recognized, applied and obeyed by the general populace. Such a rule is then considered to be backed by the legal system and is considered a ‘rule governed practice’ accepted by society.

Further, one of Hart’s main arguments is whenever there is a clash between the two systems individuals must decide whether the obligation to follow the moral rule is greater than the competing obligations under the legal rule. This argument derives from Hart’s intent to reconcile legal positivism with the public disfavour of traditional legal positivism in the Nuremburg Trials, which would have reconciled Nazi laws as legitimate despite being overwhelmingly immoral. Hart’s separation thesis will therefore instead that although recognizing Nazi Germany as valid laws, it would be unjustifiable for citizens or individuals to follow them.



Penumbra Cases and Judicial Discretion

Given this system, Hart understandably puts a great deal of responsibility and weight on judges as they are the ones that are applying these two distinct systems in their daily lives. Usually, it will be quite simple for the judges to just apply the legal rules in legislation and common law, as they have a ‘settled core of meaning’ of how to apply the ‘rule governed practice’ that is accepted in society. However, in some cases the facts will throw up a situation that falls outside the settled meaning into the penumbra. Hart calls these cases the hard case- where Courts have to apply ‘hard discretion’ to decide whether the case falls in the settled meaning. In applying their hard discretion, judges have to apply the terms of rule governed practices such as principles of justice and not principles of morality. The judge then applies these principles and terms of rule governed practice in the penumbra and either adhere with the settled meaning or make an exception to that settled meaning (as in exceptions in common law).

Application to Odhavji

Tort of Misfeasance

This case would likely be deemed by Hart as a case in the penumbra. The appeal to the Supreme Court from the Police and the Chief of Police argue that by the standard of review the plaintiff has understood the tort of misfeasance all wrong and therefore his claims must be struck from the claim. The statute in this case, the Police Services Act, is not hugely disputed by the defendants, and Hart would agree that an appeal merely based on statute would not be a penumbra case as it is clearly stated what the duties of the Chief and the police are, and the consequences of failure to adhere to them. The core of this penumbra case is a dispute as to what the settled meaning of the tort of misfeasance in a public office is as interpreted by the plaintiff compared to how it is defined by the defendants. In such penumbra cases as Hart has indicated in his theory, judges have to apply discretion based on the terms of the governing practice such as principles of fundamental justice, and this is certainly what Iacobucci J seems to be doing.

The Court in this case ultimately ruled that the plaintiff by the standard of review has the right and the ability to bring a common law tort of misfeasance in public office against the police and the Chief of Police. Iacobucci J speaking for the Court relates how the tort of misfeasance in a public office came about and what the purpose of the tort was. The purpose of the tort is to protect citizens’ reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions. This is entirely consistent with the principles of fundamental justice which values public accountability, as well as tort law’s compensatory goals for punishing fault where it is due. Hart would argue that this decision is not reached by appealing to principles of morality, but that in applying the terms of the rule governed practice the principles of morality such as punishing wrongdoers and providing help to the victims merely overlapped with the terms.

Addressing Counterarguments

Any attempt to combine the law and morality such as Lon Fuller's natural law theory or an interpretivist approach endorsed by Ronald Dworkin would be rejected by Hart. The tort of misfeasance in this case is not one where it was necessarily made consistent with morality, which natural law would suggest, but rather it just happened to coincide with morality. The foundation of the tort of misfeasance is not in morality, but rather in the governing practice accepted by society that public officials should be held accountable for their actions, which coincides with the moral aim to promote social peace and order but is mutually exclusive. Similarly, Dworkin's principled approach should be dismissed. Dworkin's approach would severely limit judicial discretion in cases in the penumbra such as Odhavji, and instead of recognizing judicial discretion applying the rules of governed practice, they are instead to apply inherent principles of law. Judges cannot just apply principles of law in penumbra, but rather they have to rules of governed practice which are grounded in the rule of recognition- rules accepted and applied in society. Having judges to apply principles of law which may or may not be accepted in society would completely eliminate the societal aspect of justice. By implementing rules of governing practice that have been recognized, society's interest will be advanced.

Conclusion

To conclude, Iacobucci J’s decision and writing for the Court would be entirely satisfactory for Hart in addressing whether the case would fit in the settled meaning of the tort of misfeasance in public office. Overall, it would seem that Iacobucci J’s approach would deem this penumbra case to fit inside the settled meaning of the tort while taking the opportunity to clarify the principles, how the tort can arise and the standards of proof required for proving liability by the plaintiff.

Fuller & The Morality of Law
Rejection of the Separation Theses

The separation theses provided by HLA Hart did not ring true to Lon Fuller. In 1964 Fuller first published his book The Morality of Law that painted a picture where law and morality were inextricably linked through a narrative about a King named Rex. Rex demonstrates through his action that it is not possible to rule effectively without satisfying the basic tenets of the Fuller philosophy. He rejected the idea of law and morality being two parallels that interacted with one another only where the two happened to meet. To Fuller, this idea was an arbitrary one. HLA Hart’s philosophy provided no guidance or support to individuals.

'''What then did Lon Fuller believe? How would the law and morality interact and be as one?'''

There are three main planks to Fuller’s argument against the separation thesis that can be addressed in greater depth:

1.	Law must produce “good order”. This “good order” relies on social acceptance of the rules, which will be grounded in external morality. “Good order” is born out of social acceptance of legal rules because of their link to morality.

2.	Law itself has an inner morality, a guidance that is linked to it, and is not separate from it.

3.	The justification for immoral law under Hart is insufficient. The separation thesis does not help one struggling to make a decision between following an immoral law and their duty to follow the law.

Social Acceptance

Fuller argues that recognition of law is necessarily linked to one’s morality. Whether or not an individual is going to follow a law is going to depend on his view of the law as moral. Recognition of the law as moral will naturally motivate an individual to feel an obligation to obey it.

Inner Morality

The law must, at its root, make sense to the individuals following it. It must be consistent, rational, coherent, and be created by an appropriate process. Laws have as their purpose to create order. To achieve this order it must follow the aforementioned guidelines less it be a coercive and immoral law. Law is more than an authoritative declaration; it is something that speaks to one’s morality in order to get individuals to obey it.

Obligation to Obey

The problem with immoral law is that individuals do not want to follow it. The separation thesis fails at reconciling immoral laws with a desire to obey it. People will naturally be drawn to follow law that they share a moral connection with. This in and of itself will create an inner motivation to obey.

Rejection of the Penumbra

The “core of settled meaning”, an idea developed by Hart, is rejected by Fuller as being a fabrication. Law is contextual and demands such interpretation. The “hard cases” suggested by Hart, are cases where it is difficult to ascertain the purpose of the legislation. Likely these are cases that deal with Law that has one or more of Fuller’s eight ways to fail to make a law.

Eight Ways to Fail to make a law

Rex, through his actions throughout his adventure in The Morality of Law, found Fuller’s eight ways to fail to make a law.




 * 1)  A lack of law or decisions are ad hoc.
 * 2)  Not publicizing or making law known
 * 3)  A failure to make laws clear
 * 4)  Laws cannot be made retroactively
 * 5)  Laws cannot be contradictory
 * 6)  Laws that can not be obeyed
 * 7)  Unstable laws (constant revisions)
 * 8)  Rules must be administered and there must be disjunction between rules.

Rex’s story offered a light-hearted glimpse at what Fuller sees as real issues that would undermine the validity of a law. If any of these “failures” were present in a law, then this law would not make good law as it would not contain in it the inner morality required for individuals to connect to, and follow it.

Application of the Morality of Law to Odjahvi

Misfeasance in a Public Office is a tort that has arisen in the common law a very long time ago. Ashby v. White (1703) is the first case where this kind of tort was established in our modern interpretation of it. In the case at hand the court recognizes two categories for this tort, Category A and category B. “Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff.” - Odhavji Estate v Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 at para 22. Through the development of the common law doctrine it has become a tort that consists of two major elements: “First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff.” - Odhavji Estate v Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 at para 23. To supplement this rule the court states that: “In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office.” - Odhavji Estate v Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 at para 28. Passing the test: To properly ascertain if Fuller’s theory would deem this law as “good law” we set it out against his eight elements.

1. A lack of law or decisions that are ad hoc. This law is an established law. It has been established in some form or another for some time.

2. Not publicizing or making law known As Part of the common law tradition for many years, this law is well known.

3. A failure to make laws clear This Law has two elements that are clearly defined. The nuances to each of these elements are less clear, however this framework establishes sufficient clarity. 4. Laws cannot be made retroactively This law develops over time through the common law, and has never applied retroactively. 5. Laws cannot be contradictory This law does not contradict other laws. 6. Laws that can not be obeyed This law is not beyond an individual’s power to obey. 7. Unstable laws (constant revisions) While this element could be considered contentious as this is part of a developing doctrine, it appears that the developments are done over time and in response to new concerns and considerations. This test would be satisfied. 8. Rules must be administered and there must be disjunction between rules. This rule is in its own category and therefore has disjunction from other rules. It is administered through actions taken by plaintiffs.

Further Application

The law in question satisfies Fullers rules. It does not fail under any of the key elements discovered by King Rex throughout his journey that lay at the foundation of this philosophy. The Inner Morality of the Law This law ultimately satisfies Fuller’s desire to have Law and Morality be one and the same. The purpose of this tort is to hold public officers liable to any action taken in measure of their duties that could harm the public. This tort takes into account the balance of power that weighs in favor of public officials, particularly police officers and politicians, and tries to ensure that they cannot cause harm to citizens by virtue of their powerful position. Fuller says. “when men are compelled to explain and justify their decisions, the effect will be to pull those decisions towards goodness.” This type of accountability can be applied as much to law making as it can be to the Police Chief who is forced to explain and justify his decisions. Individuals in society do not want to be subject to abuse of power. An abuse of that power would violate numbers 1, 3, 7 and particularly number 8 of the aforementioned elements.

In the Odhavji case, the Police Chief was recognized as having a close causal connection to the harm perpetuated by the inappropriate actions of his officers through his failure to enforce the Police Services Act. Undoubtedly, we see the need for public offices to be filled with people that take into account the well being of all of the public, this is a moral undertaking. In this instance, this undertaking, as stated by Justice Iaccobucci, “includes an obligation to ensure that members of the police force do not injure members of the public through misconduct in the exercise of police functions.” Odhavji Estate v Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 at para 58.

Conclusion:

Lon Fullers look at the morality of Law would be satisfied in this case. The law itself does not fail under any of the principles, and at its foundation, it satisfies the need for both external and internal moral elements of law.

Dworkin & System of Rights


Law and Principles

Dworkin, mainly in response to positivism, rejected the idea that legal rules stood alone, separated from morality and principle. Rather, he submits a theory of the law espousing rules, policies and principles. Hart’s Separation Thesis suggested judges exercise extreme discretion in deciding penumbra cases by drawing on the terms of rule governed practice. Dworkin, on the other hand, believed judges were limited to (or should be limited to) rule within the bounds of legal principles which inform the law and exist outside of it. It is here that Dworkin rejects any suggestion that decision makers are pulled toward moral outcomes. Fuller, another adversary of positivism, wanted to maintain morality and suggested the judiciary would base their decisions on an outcome generating morality and social order. Dworkin rejects this view, suggesting the judicial process is influenced by the overarching principles, regardless of morality.

Role of the Judiciary

These overarching (or underlying) principles are not bound by one ‘master rule’ or law, yet constantly inform the law and preside over it. In light of this, Dworkin advocates that a ‘right answer’ always exists. The judiciary, therefore, is left with the task to interpret, change, inform, or ‘find’ the rules infused within principles. ‘Hard cases’ (similar to cases which Hart would have described as being in the penumbra) where the correct rule is not initially evident require the judiciary to invoke principles, and perform such tasks. This means the amount of discretion left to judges is severely limited in contrast to Hart’s positivism. These overarching principles are to be constantly used by the judiciary to incrementally change rules so that they stay aligned with society’s conceptions of justice.

Role of the Legislature

Policies, one of the three devices used in law, are social goals usually advocated by those in the political realm. Such goals, believes Dworkin, are to be left to the legislature but still have a profound impact on rules and principles. As social goals, policies generally try to reflect and represent the interests of a constituent body. As direct representatives of society, politicians and legislators are perfectly situated to advance and protect rights of groups and individuals. Dworkin holds that these policies may impact and mold underlying principles, thereby evolving the legal landscape through future application of the law. In the Canadian context, a prime example of public policy dictating legal principles and rules can be found in the Canadian Constitution and Charter. The rule of law, presumption of innocence, ‘peace, order and good government’, and civil liberties are all matters of public policy directly interacting and influencing the underlying principles in Canadian law, and subsequently it’s rules.

Application to Odhavji

In application to Odhavji Estate, Dworkin would find little trouble with the Supreme Court of Canada decision. This is not a ‘hard case’, as the tort of misfeasance while in a public office had already been well established in Ashby v. White (1703) and Roncarelli v. Duplessis (Odhavji, para 19). The SCC explicitly discusses the tort of misfeasance in public office, and how it follows Canadian jurisprudence and underlying principles. The essence of this tort is said to “prevent the deliberate injuring of members of the public…. based on the rule of law” (Odhavji, para 26). The elements of ‘bad faith’ or ‘dishonesty’ in this tort “reflects the well-established principle that misfeasance in a public office” (Odhavji, para 28) is inconsistent with Canadian values and policies.

An analogy employed by Dworkin as to how the law played out over time was that of a chain-novel. Just as every chain-novel exhibits the writing of a new author every chapter, so does the judiciary and legal paradigm exhibit the reasoning and rulings of new judges over time. Every chain novelist adheres to the over-arching themes of the novel while directing the story in a direction they believe to be best for it. In this decision, the Supreme Court of Canada has remained consistent with previous Canadian rulings (Roncarelli, Ashby) and the "widespread consensus in other common law jurisdictions" (Odhavji, para 20), while simultaneously grabbing the reins and carving out its application in the Canadian setting. (Odhavji paras 22-30).

Not only has the Supreme Court of Canada reached a conclusion in line with existing case law, continuing the chain novel, but has done so by drawing on the legal principles infused and passed on in our society. Dworkin would be well pleased.

Liberty - Paternalism
Foundation

Liberty in the philosophy of law is focused on the concept that individuals should be free from interference. Any interference with rights must be justified upon balancing liberty with other values. The importance of liberty from state action cannot be understated, and it is enshrined now in the Constitution under s.7 of the Charter. It is undisputed that the actions of one would have an effect on others, and especially with the power and resources the state has at its disposal, there must be some safeguarding and some protection of individual’s liberty, as well as placing a limit on the state’s ability to interfere.

This is embodied in Mill’s harm principle where state interference with rights and freedoms of individuals is only justified if it is to restrict or prevent harm from others. Mill’s view of protection of liberty also extends immensely to the protection of minority groups from the tyranny of the majority. To protect the minority from coercion to conform and to protect minority views is one of the fundamental pillars of liberty. It is also important for the search of truth. As Mill himself states, truth can only be attained by protecting views no matter how absurd or ridiculous they are. Minority views that were once deemed to be false and rejected such as the views of Socrates and Jesus are now greatly accepted and deemed as the truth in society.

However, there are instances where it is deemed necessary to restrict freedom for the good of the individual or perhaps for others, based on the idea that sometimes humans act irrationally. This is reflected in the theory of paternalism which is embodied in the theory of Gerald Dworkin, where freedom is justified to protect that person from harm caused by the exercise of liberty or the offence principle where restriction is to ensure the safety of others. Dworkin believes that to some extent most laws have some paternalistic aspect to it. Laws such as those that limit individual freedom by making or prohibiting individuals from certain acts such as seatbelts or bike helmets are such examples.

Application to Odhavji

Police Services Act and Tort of Misfeasance

In this case it is clear that the legislation is seeking to limit police officer’s freedoms in how to perform investigations. The Police Services Act restricts police freedom by making them have to comply with the SIU investigation, and making the Chief to be responsible in ensuring the officers do so. This is likely to be in line with Mill’s harm principle, as the basis of the Act as a whole is to outline and limit state interference on the rights of individuals. This provision is a little more complicated though as it provides a positive obligation for the police, instead of emphasizing negative freedom that citizens have from illegitimate interference by the state. However, this would then bring it within the scope of the offence principle that Dworkin supports. The purpose of the positive obligation is to promote a thorough and just investigation into the matter, which in this case was Odhavji’s death after being fatally shot. It is necessary for the police as part of the government to be held accountable for their actions and to comply with an investigation that is being performed for the public as well as for fairness and due process that underlie the foundations of our legal system. Furthermore, this is not an onerous obligation for the police to have to comply with the SIU, and it is not an onerous obligation to give to the Chief to ensure that his officers are acting in accordance to the Act.

Not complying with the provisions of the Act and the lack of enforcement by the Chief to ensure his officers do so rightly amounts to a tort of misfeasance in public office that is outlined by Iacobucci J. The law rightly imposed a paternalistic aspect to govern the actions of the police as their actions have a great effect on others as we can see here in this case, where the failure of the police officers and Chief to comply with the Act and provision may have caused the emotional and psychological distress of the family from the death of the deceased. The tort of misfeasance certainly has a paternalistic aspect to it as it is holding accountable public authorities who themselves impose and create paternalistic interferences and influences on third parties. The tort is also in line with Mill’s harm principle as it seeks to limit unnecessary state interference and hold them accountable for interference that is unwarranted in the functions of the police in preventing harm in society.

Concurrence

Dworkin could also draw on the economic efficiency theory as the tort of misfeasance will maximize efficiency in society. Economic efficiency of the police force and the efficient managing of the police force by the chief would be a justification of the tort, and thus justifying some of its paternalistic aspects. Mill would most likely argue that although economic efficiency is important, the main focus is not on its standard of efficiency, but rather the standard is one of liberty, and that any interference on liberty should be justified rather than looking at the efficiency of the Act.

Mill and Dworkin would have agreed with the Court decision in this case, albeit by different ways. Mill would have agreed in the sense that the provision and the purpose of the Act is to limit state interference by holding them potentially accountable for their actions by the public. Making the police to comply with the Act would be promoting individual rights and freedoms of individuals, although the harm principle would not be likely to be applicable in this case as the obligation is positive and not negative (freedom from state interference). Dworkin would also likely be in concurrence with Iacobucci J’s decision as although the focus is on the police, the paternalistic aspect of the law to govern police actions is to prevent harm to third parties as the police have a paternalistic influence and potential of interference to citizens. To paternalistically restrict and limit police actions and to impose obligations on them is to preserve autonomy of citizens in the future which is definitely necessary for a free and democratic society.

Conclusion

I conclude that Iacobucci J's reasoning and judgment would have been looked favorably upon by both Mill and Dworkin from the perspectives of liberty and paternalism. The Police Services Act and the tort of misfeasance both correspond to those two goals and their place in society and in law is justified.

Law as Efficiency
The central tenet of the economic analysis of law is that it removes morality from the equation when evaluating a law or legal system. Rather than debating the origins and definition of morality to determine if a law is valid or moral as natural law and legal positivism does, law and economics is concerned only with the maximization of social wealth.

Social wealth in the context of law and economics, refers to “all measurable satisfactions” and not merely monetary wealth. Simply put, a law in any context results in a cost-benefit relationship between the parties involved, and some outcomes are more desirable than others.

Pareto-Superiority

Law and economics assumes as economists do, that all individuals are rational and self-serving, and will seek to maximize their gains in any given transaction in a free market.

Transposed to a legal context, legal economists define a pareto-superior move as a new situation that has been arrived at, whereby one of the parties involved is better off, and the other is not worse off.

This result can occur in either a win-win or win-lose situation. In the former, both parties gain something, whereas in the latter, the winning party compensates the loser so he/she is no worse off.

Pareto-Optimality

The holy grail from an economist’s perspective, pareto-optimality is a desirable stalemate that has been arrived at when no more pareto-superior moves are possible.

Although this is “optimal” in the sense that efficiency has been maximized, legal economists are critical of the applicability of the pareto-superiority/optimality efficiency model to a legal context, as there is always a winner and a loser in every legal decision.

A More Holistic Test: The Kaldor-Hicks Model



The Kaldor-Hicks approach to legal economics recognizes that third-parties might suffer externalities resulting from a transaction between two parties, and seeks to include all affected parties in its evaluation of a particular outcome.

This approach does not require compensation for the losers, or that the losers are compensated at a set time; it only requires that the wealth gained is sufficient to compensate the losers while still resulting in net gains for all parties involved.

If the wealth gained is insufficient for compensation, then the market has failed according to the Kaldor-Hicks model

Assuming a legal transaction passes the Kaldor-Hicks test, legal obligations can then be imposed on the winners to compensate the losers, such that everyone gains, resulting in a pareto-superior move. This is however, external to the Kaldor-Hicks analysis.

The Ideal System: Coase Theorem

Nicholas Coase proved that in an ideal hypothetical system where transaction costs are low and individuals are rational and cooperative, any initial assignment of rights will always result in the negotiating parties arriving at an efficient outcome.

This is rarely the case in reality, but legislators should seek to emulate and arrive at this outcome when assigning rights or imposing obligations and restrictions on transactions.

Application to Odhavji

In our current society, the police serve the social purpose of ensuring law and order, and protecting the rights and freedoms of the civilians under their jurisdiction.

The police is funded by taxpayer funds, resulting in a pareto-superior move wherein civilians pay a monetary cost to the government for the peace of mind and security that a responsible and discipline police force brings, and the government enjoys the confidence and support of the population it represents.

The purpose of the Ontario Police Services Act is to impose the legal obligation of adhering to a code of conduct on the police officers involved in the case, and the Act imposes vicarious liability on the chief of police by holding him responsible for ensuring this goal is met, under s.41(1)(b) of the Act.

Section 85 of the Act sets out the punishments for which a misbehaving police officer (including the chief of police) can be subjected to.

The police officers involved in the shooting did not cooperate with the SIU investigators, and the chief of police failed to ensure that they did so. The failure of both the police officers and the chief of police to perform their statutory duties is what the actions for tort of misfeasance in a public office against them were allowed to proceed on, by the Supreme Court of Canada.

In applying the Kaldor-Hicks test, this situation resulted in an economic failure wherein the winners were the police officers and chief of police who freed themselves of the encumbrances imposed by the Act. However, the plaintiffs who suffered mental distress, anger, depression and anxiety, were not the only losers.

In much the same way that the admission of evidence obtained illegally might be found to bring the administration of justice into disrepute under a Charter s. 24(2) analysis, police officers are held to a higher standard of behavior and every infraction they commit, impinges on the public’s confidence and respect for in their competence and authority.

Therefore, in addition to the plaintiffs, society at large and the Toronto Police Service to which the externalities of the defendants’ actions were subjected, were also losers in this situation created by the defendants.

By allowing the actions for the tort of misfeasance in a public office against the police officers and the chief of police to proceed, the Supreme Court of Canada sought to emulate the ideal hypothetical situation described in the Coase Theorem. Allowing monetary damages to be awarded to the plaintiffs compensated them for the harm suffered, and imposing disciplinary penalties on the defendants would have restored both the Toronto Police Service’s reputation and the public’s faith in it, and society’s interest in an accountable and disciplined police force.

In conclusion, the Supreme Court of Canada’s decision passed the Kaldor-Hicks test, and a pareto-superior state was achieved by imposing penalties on the defendants that restored the victims to their prior state.

Feminist Jurisprudence
Feminist theory is a series of philosophies developed in response to the inequalities that have been faced by women throughout the development of occidental society. Often centered around opposing “the patriarchy”, these theories unite in criticism against what is perceived as being a male dominated society. There are many views incorporated into this umbrella of philosophy. Each view has a unique look at the disfavored position of women in society, and an approach to balance the inequality.

Liberal Feminism

Liberal feminists look for society to be “gender blind”. Their philosophy rests on the idea that all beings are equals, in a moral sense. Because of this moral equality, treatment should therefore be equal, and this is what is strived for under this philosophy.

Radical Feminism

The position of radical feminists is to attack the patriarchy, a male dominated backdrop to our society. This philosophy recognizes the patriarchy as pervasive in our thoughts and attitudes. These thoughts and attitudes have, by this philosophy, insidiously implanted themselves in all of our institutions creating a systematic discrimination against women. The solution, according to radical feminists, would be to reverse these structures and dominations, reconstruct gender and eliminate the patriarchy.

Marxist and Socialist Feminists

Feminists belonging to the socialist or Marxist movement believe that the class based system set out by a capitalist philosophy makes it impossible for women to achieve equality. Implementation of a socialist system is the way to achieve equality as it tears down all of the economic dependence and dependence created by capitalism.

Postmodern “French” Feminism

Like most post-modernist movements, post modernist feminism seeks to that establish categorical, structured theories in existence can be debunked using deconstruction techniques that debunk the patriarchy present in the system. A post-modern feminist would believe that a “singal truth” approach to society is a male fabrication. Simone de Beauvoir, a famous French existentialist and postmodernist, wrote about the concept of “the other”. A patriarchal society establishes women’s status as the other, meaning that they are relatively subservient to a male dominated society. Post-modernists do not believe in one solution as they recognize that the idea of one solution would mean that every woman’s experience is the same, which would be incorrect.

Relational Feminism

This theory pits the predominant moral attitude of men, “the ethic of justice”, against the women’s view, “The ethic of care”. This relational theory acknowledges that each of these elements, though distinct, are important and neither should be devalued. The principal debate among relational therapists is whether or not women should receive special treatment or equal treatment.



Catherine A. MacKinnon – Law as Male Power

Catherine A. MacKinnon, an American legal philosopher, says that a male standpoint dominates society. This social dominance by males is invisible through adopting the male point of view in establishing the law and enforcing it on society. She argues that it is hard to see the inequality because the status quo proclaims itself to be equal. She goes as far as to say that women do not even know what sexual equality would look like because it has never been seen and they haven’t experienced it. Removing the barriers to inequality would prove difficult because of the uncertainty women would have as to what these inequalities would even be. By and large this inequality has become systematic, writes Catherine A. Mackinnon, and only by taking certain measures can this inequality be overcome. Access to abortion is considered necessary, because it provides a form of relief from a life that otherwise precludes choice in a way that previously, women have not been able to control. Legal abortion is a sexual equality right.

Application to the Odhavji Case

The tort of misfeasance in a public office would be strongly supported by the feminist legal theories. This is a tort that makes it possible to bring an action against abusive members of the patriarchal system. The tort itself is created to ensure justice for those that suffer because of their mistreatment by the patriarchy. In this case a player in the patriarchal system, the Chief of Police, was found to have been negligent in his duty to the surviving members of the Odhavji family, causing them unnecessary anguish because he acted immorally given the powers bequeathed to him. According to the feminist theories however, the patriarchal overtones of the system would be against them in successfully bringing this tort against a male dominated institution. The systematic discrimination of women would affect their chances of success as the patriarchy seeks to defend its male dominance. Any loss as a result of this tort would stun the patriarchy and therefore would be sought by a feminine legal theorist.

Beyond the systematic discrimination that we see in this case, it is important to note the role that gender may have played in this case. The deceased is a male, however his parents made the complaint. This case is really about the mental anguish over a lost son by his mother and father. The Police Chief was a male. The investigation was handled improperly by the police chief in regards to the needs of a suffering family. The gender imbalance between the two sides makes this case a particularly interesting one. Male dominated society treats certain emotions or actions as female. Undoubtedly, the emotions stemming from the loss of a child is something that a male dominated society would classify as a feminine emotion. This is the nature of the loss in this case. The question therefore naturally arises: Did the established patriarchal institution fail in regard to its response because of an intrinsic belief that its response to this feminine problem was not important. This would fit well with the analysis of Catherine A. MacKinnon whereby we see that this sort of discrimination would be so pervasive in society that it invisibly guides the actions of those in positions of power that represent a patriarchal system. The anguish suffered by the parents may have been consciously or subconsciously overlooked because of a perception that it was a feminine reaction and that the duty of care imposed upon the Chief of Police was not taken seriously because of this perception.

Conclusion

This case shows us the importance of analyzing the feminist perspective to understand the undertones of a case. The Odhavji case shows us a look at the patriarchal system’s response to abuses within its system. It is clear that Feminist Theory would respond to this case to ensure that the patriarchy and its insidious undertones would not marginalize a feminine perspective, be it perceived or real.