R. v. O'Connor,  4 S.C.R. 411
Natural Law Theory
The theory of natural law, a universal concept, is based on the idea of morality being inherent in law, as the two are intertwined. The source of natural law originates from a “higher power”, which is presumed to be a non-human source, such as God, nature, and/or reason. Since natural law is inherently linked to morality, it is claimed to be universal and unchanging, but allows for the variation, based on the diversity and variety of human affairs and the ever-changing state of society. One of the founding fathers of the natural law approach was St. Thomas Aquinas, who helped distinguish it from eternal law. According to St. Thomas Aquinas, both sources of law originate from God, but eternal law is pure, raw, unaltered law. In contrast, natural law requires the law to pass through the minds of humans, and through the application of reason and rationality, then crafted towards the common good. Essentially, God has granted humanity with reason, allowing us to devise laws, which reflect our morality and allow us to achieve the common good.
Natural law theory sets out criteria for determining the validity of a law, based on the following four elements that must be satisfied/present: 1. Must be directed to the common good. 2. Must follow practical reason (reasonable steps leading to the common good). 3. Must be made by valid lawmaker (ruler within community, who hold this position by reason of the natural order) 4. Must be promulgated. So if laws do not have these characteristics, they are deemed invalid/illegitimate.
Application to Case
In the case R. v. O’Connor, the main issues are based on the Crown’s duty to disclose evidence as well as the appropriate procedure for when third parties are requested to produce personal documents that may be relevant to the case.
An issue that quickly becomes apparent is based on the competing values between the parties involved - the protection of privacy and dignity of the victims (production of their personal information) balanced against the duty of the Crown to disclose information and the right for the accused’s ability to make full answer and defence.
A natural law theorist may interpret the common law, and in this case the test for when third parties need to produce relevant information, as the interpreting and modifying the law (as humans devising ways to achieve the common good). It would not be equitable nor fair to heavily favour either competing interest (privacy vs. duty to disclose). Natural law states that this would be God’s law as it passes through human’s minds and is rationally crafted into laws to govern these competing interests.
Enshrined in our Charter of Rights and Freedoms is the guarantee of a variety of rights, with limitations only imposed by section 1. In this case, the appellant is arguing that section 7 of the Charter is being violated as the accused is not being afforded the full defence possible by not having access to the therapeutic records of the victim. However, the prosecutor for the Crown claims that the victim would have to “re-live” the traumatizing experience and would be a violation of their privacy and detrimental to their dignity.
The test established in this case for the production of records in the possession of third parties was designed to reconcile these two competing interests. To determine whether this test should be considered a valid source of law, the four elements must be present (as mentioned above).
The first step of the test is whether the law is directed to the common good. Here, the common good is directed at the good of the community, rather than specific individuals. A goal in law is to maintain a stable and harmonious society; the order that is imposed by law is necessary for the common good. The test established in this case fulfills this requirement, as it strives to balance the rights of both victims and their privacy/dignity with the accused and their right to a full defence. In this case, the law and test established allows the accused to obtain third party information if it is necessary for their defence, but also incorporates the extent of privacy involved for the victim.
The test helps safeguard against harm done to the victim by determining whether the production of the records would be premised on any discriminatory belief and the potential prejudice to the complainant’s dignity, privacy, or security of the person that would occur from the production of the record. The onus is on the accused for convincing the judge that the information is relevant. The judge being satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify determines if evidence is relevant. After relevance has been established, the judge balances the competing rights based on the five factors mentioned above. The common good motivates this test - protecting both interests of parties and establishing compromise for a case-by-case basis. Since this test could potentially apply to anyone in Canada (whether victim or accused), it is must aimed at the common good for the community (our entire nation).
These competing interests and ultimate compromise help satisfy the second element of a valid law under the natural law approach, which requires reasonable steps being made towards achieving the common good. An “all or nothing” approach that favours either party would not be ideal given the delicacy and importance of both the right to a full defence and the security of personal documents.
The third element is a bit more ambiguous and controversial when applied to the outcome of this case. It asserts that valid laws need to be made by valid lawmakers. While judges of the SSC can be viewed as “rulers” in establishing the common law, St. Thomas Aquinas would argue that they do not possess the same level of authority that legislators do. So while this may not be preferable, the judge can still be viewed as a valid lawmaker. A natural law theorist would argue that a judge must apply the written law as long as it does not contradict the natural right. In this case, the judges were applying the Charter to help develop a reasonable solution that would protect both parties interests. This test demonstrates that the judges, who are valid lawmakers, applied the written law (Charter) appropriately and took the reasonable steps necessary in achieving this outcome.
The fourth element regarding a law being promulgated is the belief that laws need to be written or accessible to the public which it governs. In the context of this case, it could be argued that the common law decision in this case both follows the principle of promulgation and does not. On one hand, common law decisions are made available to the public if searched for and our society recognizes and affirms the authority of the judiciary and common law that is established. On the other hand, it can be seen as contradicting certain Charter rights, which are much more commonly known. This may mislead and blindside parties involved, in which limits have been placed on individuals' Constitutional rights.
The basis for legal positivism is the separation of morality and law; in this sense, it distinguishes itself from natural law theory as the moral content of law is considered completely separate. The historical foundation of legal positivism is based on the validity of laws coming from their sources and creation, not their merits or value. However, more modern legal positivists would argue that law is inherently moral.
One of the founding theorists for legal positivism was John Austin, who establishes a general framework over the origins of law. He claims that laws are commands issued by the “uncommanded commander”, i.e. the sovereign. These commands are issued by superiors to subordinates, and are enforced by sanctions. The sovereign can be viewed as someone that is obeyed by the majority, and can either be an individual or group (e.g. Parliament).
When new laws are introduced, they must be consistent with the rule of law making jurisdiction. This is determined based on the “pedigree” test – based on what the origins of the rule being introduced is, and if it is consistent with the rules of the system. Austin argues that judges are subordinates, imposing limited authority delegated to him/her by the state authority - Canadian Parliament.
Another subsequent legal positivist that refined this theory was HLA Hart and his theory of the rule of recognition. He rejected the theory that laws are simply “commands” and separated laws into two categories: primary rules and secondary rules.Primary rules are based around telling citizens what they can and cannot do. These rules are concerned with regulating the conduct of the people they govern. Secondary rules are used to change and modify rules, helping to establish and clarify what the rules are. This distinction between primary and secondary rules essentially display the difference between substantive (primary) and procedural (secondary) law.
Hart’s rule of recognition states that valid laws need to be recognized by officials within the legal system, and these officials - judges - need to consistently apply these criteria (e.g. the common law and the Constitution) and believe that they are obligated to apply these valid laws.. Hart states that laws do not have to be moral to be considered valid and that officials can still apply them, but that disobedience of the governed people is warranted if a law is truly immoral.
Application to the case
The case of R v. O’Connor deals with issues that revolve around competing Charter interests. Since Canadian society and our legal system is a constitutional democracy, the Constitution Act, 1982 reigns supreme and thus the common law must reflect and be consistent with it. Since there are competing interests between the parties, both involving valid, protected rights under the Charter (s.7 applying to both parties).
This case would establish what Hart claims is a secondary rule, as we are slightly modifying the rules and clarifying how the Charter rights should apply for the duty to disclose, yet also respecting victim’s privacy rights. It could also be argued that the duty to disclose, in certain circumstances (such at the case at bar), imposes primary rules on the Crown to follow.