R. v. O'Connor,  4 S.C.R. 411
The accused was charged with a number of sexual offences. During trial, the accused requested that the Crown produce the entire files of the four claimants medical, counseling, and school records. He claimed it would be relevant in making full answer and defence. The trial judge ordered the Crown to produce the relevant documents, but they failed to do so. Crown counsel submitted that uninhibited disclosure of medical and therapeutic records would re-victimize the complainants and suggested that the disclosure order exhibited gender bias. The trial judge noted the Crown had unacceptably limited the scope of disclosure to only those portions of the records relating directly to the incidents involving the accused, resulting in the full therapy records not being disclosed to the defence until just before the trial. The trial judge stayed proceedings.
The main issue before the court, for the purposes of our analysis, was whether the appropriate procedure to be followed when the accused seeks production of documents such as medical or therapeutic records that are in the hands of third parties was followed?
The court reaffirmed that once information was obtained by Crown it needed to be disclosed to defence. However, recognizing the sensitive nature of these third party records the Supreme Court of Canada (SCC) created a five step analysis in which neither defence nor Crown would obtained the private information prior to a judge determining its relevance.
When the defence seeks evidence from third parties (i.e. counselors) the onus is on the accused to demonstrate that the information is likely to be relevant. "Relevance” means if evidence is useful to the defence. The test for relevance is based on 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.
The judges (Lamer C.J. and Sopinka J) weigh the competing interests of both the accused and complainants. They establish five factors to consider when determining the appropriateness of production and disclosure of third party documents. These factors are as follows:
- The extent to which the record is necessary for the accused to make full answer and defence;
- The probative value of the record;
- The nature and extent of the reasonable expectation of privacy vested in the record;
- Whether production of the record would be premised upon any discriminatory belief or bias; and
- The potential prejudice to the complainant’s dignity, privacy, or security of the person that would occur from the production of record.
In addition to creating the above five stage analysis, the court held that while the Crown’s conduct was shoddy and inappropriate, the non-disclosure did not violate the accused’s right to full answer and defence. No judicial stay was granted for the accused.
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, and 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:
- Must be directed to the common good.
- Must follow practical reason (reasonable steps leading to the common good).
- Must be made by a valid lawmaker (ruler within the community, who holds this position by reason of natural order)
- Must be promulgated.
If laws do not have these characteristics, they are deemed invalid or illegitimate.
Paraphrased from pages 1-33 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law.
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 (protection of their personal information) balanced against the duty of the Crown to disclose information and the right for the accused 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 are 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 victims. However, the Crown claims that the victims would have to “re-live” the traumatizing experience and thus disclosing the information 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. Using natural law to determine whether this test should be considered a valid source of law, the four elements must be present.
Common Good and Practical Reason
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 his 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 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 to convince the judge that the information is relevant. If the judge is satisfied that there is a reasonable possibility the information is logically probative to an issue at trial or the competence of the complainant 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 (victim or accused), it is must aimed at the common good for the whole community.
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 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 "separation thesis"). 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”: 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, in Canada Parliament would fit this category. His view on law and morality was that the subordinates had the moral obligation to obey all valid laws, whether or not they were moral, and that the law itself is a standard of justice. While lawmakers may strive for congruence with morality, it is not a necessary element in a valid law.
When new laws are introduced, they must be consistent with the rule of law making jurisdiction. This is determined based on the “pedigree” test. This test is based on what the origins of the rule being introduced is, and if it is consistent with the rules of the system. This "pedigree" test requires that a law must be created according to the rules of the system, so a modern example would be how a bill is passed through Parliament and all the necessary steps taken for it to eventually become a law. Austin argues that judges are subordinates, imposing limited authority delegated to them by the state authority: Canadian Parliament.
In summary, Austin would require a valid law to depend on:
- A command,
- Issued by a sovereign (a determinate and common superior to whom the bulk of a given society are in a habit of obedience or submission to) and,
- Imposed by sanctions.
In comparison to St. Thomas Aquinas' validity of law depending on:
- Common objective,
- Reasoned steps leading to the common objective,
A more modern legal positivist who refined this paradigm was HLA Hart and his theory of the rule of recognition. He rejected the theory that laws are simply “commands” and viewed laws as human artifacts. Hart 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 displays the difference between substantive (primary) and procedural (secondary) law. Hart breaks secondary rules into three categories: 1) the rule of recognition; 2) the rule of change; and 3) the rule of adjudication.
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 (for example 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. This is in sharp contrast to what a natural law theorist would believe, such as St. Thomas Aquinas, who would argue that the law has to be aimed at achieving the greater good. They would agree that disobedience by the public is warranted if the law is immoral, but would disagree with the positivist view that laws do not have to be moral. However, Jeremy Bentham (a utilitarian philosopher) would completely disagree with the natural law approach, claiming it is "nonsense upon stilts". The rule of change enables society to add, remove, and modify valid rules. Finally, the rule of adjudication provides a mechanism for determining whether a valid rule has been violated.
Hart's analysis of the law shows how Austin's theory falls short because it does not acknowledge the importance of secondary rules in manufacturing legal validity.
Paraphrased from pages 33-48 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law.
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.
When applying Austin's classic positivism theory to this case, many complications and difficulties arise. According to Austin, the legislature (Parliament) is the sovereign whereas judges are being delegated power with limited authority over the decisions they can make, so they would be classified as a "subordinate". This theory struggles to explain how judges can adopt and apply common law, rather than just legislation, as they are "subordinates" making commands. Austin also states that the sovereign cannot be bound by law, (a condition of law's validity is that is is a command issued by a sovereign to a subordinate), yet in Canada, our constitution explicitly binds the sovereign (rule of law). The case R v O'Connor is a perfect demonstration of how the Constitution/Charter control the decision making process of judges, since there are competing interests between the parties: both involving valid, protected rights under the Charter (s.7 applying to both parties). Thus, the judge's decisions, as having delegated authority from the sovereign, are limited through the Rule of Law and Constitutional Supremacy.
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. Hart's secondary rule, the rule of change, also applies as the judges in this case are interpreting how the section 7 right should impact the duty to disclose. Consequently, they formulate a test that changes the privacy rights of victims, as well as the right to make full answer and defence. It could also be argued that the duty to disclose, in certain circumstances (such as the case at bar), imposes primary rules on the Crown to follow.
The Separation Thesis differs from the above mentioned theories and expands on some aspects of positivism. While natural law requires valid law to be based out of the 'common good' (morality), positivism contradicts that and states that laws are valid (whether or not there is a moral reason behind their existence) because they are created by a recognized sovereign: separatists take the removal of morality from law one step further. H.L.A Hart’s Separation Thesis is based on the belief that law and morality are separate rule governed systems. Hart sees law as purely man made and therefore they do not dependent on moral content. In Hart's view laws and morals can run parallel. However, if there is a conflict then there is a decision to make. Individuals may be guided by their conscience and they may deviate from the law and follow their moral obligations.
Because laws do not require morality to be valid, Hart argues that laws are followed, not out of fear of punishment, but because there is a recognition that laws create stability and effectiveness within society. There is a belief we “ought to” follow laws not because we are morally obligated to but because of the outcome. Like rules of a game, laws are followed based on participants recognition of their use. However, they differ from games in that they are universally recognized and backed up by a legal system. Therefore validity, as per Hart, is based on and rooted in the rule of recognition. If the majority is not following the law consistently then it is not a valid law.
The Role of Jurisprudence
According to Hart, all laws have a settled core of application, when situational facts fall outside that settle core they fall within what Hart calls the "penumbra". These cases are the exception to Hart's rule, what he considers the "hard cases", they are the cases dealt with in the common law. When cases fall within the penumbra judges must draw on themes, or "rule governed practice", to determine the outcome. These rules of practice may look like morality, but are not morality, run through the entire body of law and the legal system, similar to the principles present in Dworkin’s Theory. This is what leads to consistent law making in courts. They are the principles of justice in the administration of law and principles of fundamental justice, but again, not morality.
Application to R v O'Connor
The case of R v O’Connor looks at the right to full answer and defense and the right to privacy. It looks at how people cannot be legally deprived of these rights except in accordance with the principles of fundamental justice. These values run through our legal system. This case can be considered a hard case, because it’s factual situation falls within with the penumbra: outside the settled core. The rule governed practice must be applied to the right of privacy and the right to a fair trial. Then the rights are balanced against each other to come to a decision.
The victims in this case have the right to privacy and psychological integrity free from state interference. The accused has the right to a full answer and defense. However, as both rights cannot be fully followed at the same time, there is a conflict. This conflict is the part of the facts that fall outside the settled core and in the penumbra. If the accused requires records of an extreme private nature to the victim, neither right could be satisfied fully at the same time. Here in order to come to a conclusion the judge must balance the rights and pull to the rule-governed practice to accomplish this.
The rule-governed practice shows that fundamental justice requires a fair balance between the rights of the competing parties. In this case the judges recognized that there would be times when included the information from third parties would be required by the accused for full answer and defence but also recognized the extremely sensitive nature of the records and the violation of privacy it posed. Understanding that a situation like this would be fact dependent the court develop the five-stage analysis. The analysis created would remain a case-by-case analysis and therefore would be applied slightly different to each case. In balancing the rights of two completing parties, this totality of circumstance analysis creates an opportunity for an outcome based in fairness and fundamental justice.
While Hart would see the court's achievements in using the rule-governed practice to organize the fact pieces in the penumbra, those who critique Hart's work would argue that what Hart calls rule-governed practices is morality.
Critique of the Separation thesis: Lon Fuller
Fuller has four main critiques of the separation thesis.
- Unlike Hart, Fuller believes the social acceptance of legal rules depends on grounding in morality. Hart believed that in order for a law to be in the rule of recognition the majority of society needed to hold the belief that there “ought to” be a reason to follow that law. Fuller argues that the the only reason the majority of society would believe it "ought to" follow a law was based in morality.
- Unlike Hart, Fuller argued that law is more than a label, it has an inner morality. Fuller states that a legal system must be coherent, rational, and consistent. The law must, not only act like a law, but it must be capable of explanation. Fuller argues that these requirements of law and the legal system is the inner morality of the law.
- Fuller argues that immoral laws cannot actually be explained by the separation thesis, which means there is no adequate explanation for a general obligation to obey a law.
- Lastly Fuller disagrees with Hart's theory of judicial interpretation: the "settled core of application" and the "penumbra." He does not believe in either. Fuller argued that laws are always interpreted in context and with reference to the purpose of the rule and the good it was meant to establish. Hard cases to Fuller are those where the purpose is uncertain or there are completing purposes in play.
Paraphrased from pages 183-207; 208-234 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law.
Application to R v O'Connor
In R v O'Connor, the issue of competing rights to Hart falls in the penumbra. Fuller would instead call these the competing purposes in play. Then using the external morality (purpose - the good it was meant to accomplish) and inner morality of the law judges would balance the competing laws. In addition, while Hart believes judges are interpreting issues in the penumbra, Fuller believes they are creating new law.
Fuller and Hart would also disagree on the definition of morality. Hart does not fully define morality but believes it could be extra notions of the 'ought to' belief, therefore because it could be bad or good, it could potentially be dangerous to the source of law. Fuller defines morality as inner morality that is based on logic and rationality. He states, “when men are compelled to explain and justify their decisions their effect would be to pull those decisions towards goodness.” (Dimock, 211) This means through explaining the morality that is in law you ensure that it is at its optimal goodness.
Law as a System of Rights
Theology of Ronald Dworkin
R v O’Connor, can be considered a “hard case” through the perspective of Ronald Dworkin’s theory, Law as a System of Rights. Dworkin’s approach classifies “hard cases” as cases that do not adhere to any rules or the result is flawed if the rules were followed. In these cases the judge must use principles to guide his reasoning to the only right answer. Principles are a part of the law and cannot be created because they already exist; they just need to be recognized by the judges.
Principles are legal obligations and are not discretionary. The principles in this case would be the underlying protection of the victims from having to expose information touching on their biographical core and the principles of fairness. The conflict relevant in this case is the balancing between one’s privacy rights and the right to make a full answer and defence. The judge must use principles to come up with the one answer.
Features of Dworkin’s theory can be identified in the reasoning of the majority in the case of R v O’Connor. The majority court ultimately used principles to balance and decide the overriding rule in this case. The court implied the rule of privacy, from section 7 of the Charter, "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice", as the right answer in case. They found this principle to be of greater importance than the principle pertaining to a fair and full defence. The court found the protection of the victim from unnecessary harm and stress to override the principle in regards to a fair and full defense.
The court identified difficulty of such timely delays in the delivery of previous disclosure. The majority acknowledged that the Crown claims to have inadvertently forgotten to disclose the records as she had “dreamt” she had done it. The Court recognized the Crowns conduct as shoddy and inappropriate but found that it did not offend the principles of fundamental justice. When balancing the rights of two parties it is necessary to consider the history of each separately because the principles must be weighed out of past policy. In this circumstance both rights were already pre-existing. This is directly in accordance with Dworkin’s theory. Policy is better left to Parliament but when the principle and policy do not align the court steps in. According to Dworkin, when deciding whether the stay of proceedings was a violation of the accused section 7 Charter rights, the crown had to balance competing policy considerations and relevant principles that would influence the rights of the accused and integrity of the judicial system. Any decision made by the court must be guided by relevant principles and policy considerations that define the legal system. Judges’ discretion is limited in this way as Dworkin refers to it as “ weak discretion”. According to Dworkin, the judges were justified in deciding that this case was not a case in which a stay of proceedings was mandated. The court found that in order for disclosure two requirements must be met:
(1) It must be established that the records are relevant in regards to the case, and this must be done without seeing them; and
(2) After balancing the interests of both side, using the 5 point analysis, the judge must decide whether they shall be disclosed.
Policy considerations such as, the integrity of the judicial system and the importance of confidence from society in the judicial system should be given a more weight when balancing the competing principles.
From the analysis above, it is clear that Dworkin would have approached the case of R v O’Connor in a similar way as the majority decided and he would have yielded the same outcome. Implementation of Dworkin’s theory resulted in the issues pertinent to society being taken into consideration and use to amend flawed law.
Paraphrased from pages 235-275 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law.
Liberty and Paternalism
John Mill's theory, Liberty, interprets the law as the moral code of society, which has been established to regulate human behaviour, while at the same time implementing a system of individual liberty. Although Mill discusses infringing individual rights and freedoms to protect society, it’s clear that Mill has a presumption in favour of individual liberty. Therefore, Mill's focus is making sure that interference is justified. We can see the court in R v O’Connor grappling with these ideas of liberty, as they try to justify infringement on the accused’s section 7 rights.
The accused argues that non-disclosure of the victims' entire medical, counselling and school records was a violation of his section 7 Charter right, since non-disclosure of these records could ultimately impact his right to make full answer and defence. The SCC reaffirms judicial precedent that the Crown is required to disclose all evidence and material they obtain to prevent a Charter violation. Taking into consideration the Crown's conduct, which the court categorized as "shoddy" and inappropriate, the non-disclosure was a violation of the accused’s Charter rights. However, taking into consideration the seriousness of the crime and the implications it could have on the victims' dignity and safety, the infringement was minimal and therefore justified.
The court acknowledges that situations will arise in the future in which the accused would not be entitled to all the information/documentation he deems ‘necessary’. These situations will usually arise when the documentation is of such a personal nature that it would violate the privacy rights of victims. Taking into consideration the interest of society and the importance of the protection for vulnerable victims, the court developed a new procedure for disclosure of records.
According to this new procedure, the judge would first consider the importance of the information before it was distributed to the Crown, since the Crown's duty to disclose information is extremely important in protecting the rights and liberties of the accused. This new procedure allows for the judge to decide which information can be disclosed to the Crown and the defence, allowing for the judge to weigh the liberty and security of the victim and balance it against the rights and liberties of the accused. Therefore, in cases where there is a serious harm to the victim and others in society, the right to disclose or produce information may not be granted to the accused.
We can see the court adopting Mill's theory by using harm to society as a basis for justifying their decision. According to Mill, the only legitimate justification of infringements on individual rights is infringement based on the harm principle: restriction of individual liberty to prevent serious harm to others. While, the court in this case ruled that there was no infringement on the accused’s rights, they used the harm principle to reach this conclusion. Disclosure of the records would not only have caused strenuous amounts of stress on the victim, who would have to relieve her traumatic experience, furthermore, the judgment of this case could potentially have adverse side effects on future victims. By infringing the rights of one, harm to society was ultimately prevented. According to the dissenting judgment, because this was a breach of the Crown’s duty, non-disclosure of the records would be a serious infringement on the accused’s section 7 Charter rights. The dissent in this case interpreted the non-disclosure as having adverse effects on the accused’s ability to prepare for trial, which also violated the fundamental principles of justice, ultimately harming society's sense of fair play and decency. Interestingly, we can see the dissent adopting some of Mill's principles in their judgment as well. Since the dissenting judges did not perceive the disclosure of the records as being harmful to others in society, the infringement on the accused's liberty was not justified. This is analogous to Mill's ideas, unless there is some perceived harm to society, infringement cannot be justified.
The dissent concluded that the Crown's conduct was outside the scope of their prescribed authority and therefore a stay of proceedings was justified. This reasoning is analogous to Mill's ideas of authority; according to Mill, government authority should be subject to limits in order to prevent anarchy and dictatorship. The dissenting opinion also disagreed with the majorities judgment in developing a new procedure for disclosure of information.
Accordingly we can see the dissent endorsing Mill's principles in their approach to limit the Crown's power by suggesting that a stay of proceedings would have been the appropriate course of action.
Similar to the reasoning put forward by Mill's Liberty theory, Ronald Dworkin would also agree that that infringing on ones rights, based on relevant principles in society such as security, would be a valid justification on infringement. According to Dworkin, security is a fundamental principle in society, representing a pressing concern, and therefore would require more weight versus the rule of full disclosure.
Where Mill’s theory allowed the limitation of individual liberty solely when it is necessary to protect potential harm to others, paternalism proposes the idea that society should also protect harm that is done to oneself. According to Mill, harm to one does not need to be protected; individuals have the liberty to act as they like, the state should not interfere with one's autonomy.
As mentioned above, Mill’s theory justifies the limitation of individual liberty solely when it is necessary to protect the potential harm to others, rejecting the idea that harm to oneself does not need to be protected. Paternalism proposes the idea that society should also protect harm that is done to oneself. Comparing these two approaches its clear that the present case is more consistent with the ideas proposed by Mill, rather than paternalism. Unlike paternalism, the case does not focus its attention on protecting against harm that is done to oneself. Instead, it focuses on the court; balancing the interests and security of the victim with the liberty of the accused to determine that limiting the autonomy of the accused would be justified to protect the interest of the victim and other potential victims in society.
Dworkin’s theory could also agree with the ideas of paternalism, if protection to oneself was a relevant and pressing principle important to society, then infringing on rights and established rules would be justified.
Paraphrased from pages 302-322 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law.
Law as Efficiency
Economic theory defines laws and the development of legal rules as developing towards efficiency. The purpose of law moving towards efficiency is to achieve and facilitate the maximization of social wealth. Wealth, according to economic theory, is not merely money, but all measurable satisfaction.
The economic theory tends to focus on individual transactions between people, emphasizing market transactions and transactions between individual parties achieving maximization of wealth. We do see some of the main ideas expressed in this theory adopted by the court in R v O’Connor. According to the theory, the common law has developed to give judges considerable power to protect rights, transactions, and establishing procedural rules to increase efficiency.
In R v O’Connor, social wealth is the protection of sexual assault victims. To protect the rights of the victim and potential victims in society, the court not only infringed the accused’s section 7 Charter rights, but furthermore, a new procedure for information disclosure was developed. The court established this new procedure as a way to strike a balance between the two competing interests, those of the accused and the victim. According to the court's ruling, these new procedures were for society's benefit, where victims and potential victims rights were at risk, so the disclosure process would be weighted in their favor. According to the economic theory, impacting the rights of the accused was a small cost to pay for a bigger benefit to society.
According to the economic theory, rights are conferred to individuals and these right and liberties need to be protected. However, rights are only recognized to the extent that it is efficient to recognize them. Enforcing someone’s rights might be costly to society and therefore limiting these rights might be justified as a benefit to society.
Accordingly, R v O’Connor had a right to a fair trial and the right to disclosure of records from the Crown. However, the cost associated with allowing R v O’Connor to enjoy his full set of rights was extremely high. Not only would this decision be extremely fatal for the victim who would have to bare the burden of having her terrific experience disclosed to others, but this decision could have also affected future victims of sexual assault, as well as privacy concerns in general. If we look at the court's decision as implementing a cost-benefit analysis, we can see the economic theory of wealth and benefit maximization emerging. The wealth in the present case would be the protection of sexual assault victims, and infringing the rights of a wrongdoer in order to maximize this wealth would be in accordance with the economic theory; this decision would allow the court to achieve and facilitate wealth maximization.
The dissenting judgment can also be understood from the economic perspective. According to the dissent, the disclosure of documents was not a serious impact on the victim and the Crown's duty to disclose outweighed any other needs. This can be interpreted from the perspective of an economic theorist, in which the cost of allowing the Crown to disregard their duty to consult would be a cost on society as a whole, which would not lead to the maximization of wealth. Allowing the Crown to disregard their duty would open up the possibility of allowing the Crown to dishonour their obligations in later cases, which would ultimately weigh against efficiency and be a cost to society. Thus while the rights of the victim would need to be protected, infringing those rights can be justified by the cost associated with allowing the Crown to dishonour their obligations.
John Mill's theory would agree with the economist perspective that infringing on the accused section 7 rights would be beneficial to society as a whole, since infringing his rights would ultimately lead to the protection of society. According to the liberty theory, the only justification for infringing on ones rights is for the protection of others in society, thus John Mill would not agree with the economist ideas of justification for wealth maximization.
Paternalism would not agree with the ideas put forward by the economist theory. According to the economist approach, the court in this case was justified for infringing on the accused's rights as this would lead to wealth maximization for society. In contrast, according to paternalism, individuals should be protected from harming themselves, placing less emphasis on the need to protect society. Thus, the courts would have been justified in infringing the rights of the accused if it was done to protect him from harm.
Similar to legal realism, feminist theory is not a single school of thought but is a cluster of related views with a common core. Therefore, feminist theory rejects the abstract theories above. Instead of looking at an overarching abstract theory guiding and governing law, feminist theorists focus on the diversity of the theology derived from the actual lived experiences of women, keeping in mind that not all women have the same shared experiences. It is through this lens that it examines law. Feminists note that women have traditionally been silent subjects in law. Law is traditionally thought of through the aspect of the ‘reasonable man’ and the strength of patriarchy. Women are generally noted only when they are the subject of law and the discussion is about them. Feminists ask how this impacts women.
Common Core Belief
The core belief of all feminist groups is that the world, as understood today, is structured by patriarchy: the systematic domination of women by men (or minorities by the majority). Patriarchy represents the power that one group holds and wields over another. Feminists argue that this is so engrained in today’s society that it structures virtually all of social reality, including law. The belief is that patriarchy is disadvantageous for women and therefore is detrimental for society's growth and improvement. Feminists study how this can be changed to better the lives of women (which, again, would be beneficial for everyone). It is here, in the mode of challenging and reforming the traditional “value” (patriarchy and the system that flows from it), that feminists diverge into different subgroups.
Liberal Feminists are the classic feminists that believe there is nothing wrong with Dworkin’s theory and the principles that accompany rules in law, but they argue that patriarchy created subordination of women and “blocks” which prevent women from participating in all aspects of society - including the economic and political sphere. They argue that removal of the blocks would bring about “equality.” This is largely where liberal feminists differ from other subgroups who argue that more is required than mere removal of blocks to create equality. But to the Liberal Feminist, equality is defined as “equal opportunity”. They hold the belief that “gender blind laws”, no blocks, no privileges, will achieve what is necessary. The Modern Liberal Feminists, however, recognize the diversity in the lived experiences of women (i.e. motherhood) and acknowledge that these need to be recognized and provided for in order to maintain the accessibility of “equal opportunity.” They also recognize, that once the blocks are removed (removing the formal inequality) informal inequality that is experienced by women in the public sphere still exists.
Liberal Feminists would likely be more accepting of the majority holding when compared with other subgroups of feminism because of their acceptance of Dworkin’s principles and fundamental justice. They would therefore have less difficulty in understanding the majority's approach in balancing the two rights recognized by the Canadian legal system: the right to full answer and defence and the right to privacy.
Marxist Feminists, similar to the general Marxist, believe that societal problems are rooted in the capitalist system. When capitalism emerged, all the the working class had to sell was their labour; for feminists the focus is on the devaluing of the “private” work sphere (home-based labour) because in capitalism this labour is considered economically useless. Women's work in the home has been devalued because it does not create capital like men's labour in the public sphere. Like Marxists, Marxist feminists believe change will come when capitalism ends.
Unlike Marxists feminists, Postmodern Feminists reject the idea that there is a meta-theory which would explain or fix the problem of patriarchy. They believe that there is no single solution to female oppression. There are multiple solutions which must respond to the actual, real lives of women, not the abstract category of women. They argue that women are often thought of in society as the ‘other’, unless they take on what is known as male characteristics. Women who are capable of taking on these characteristics are the exceptions. This could not and should not be the norm. Instead, what needs to be done is women need to overcome their embarrassment of the 'otherness'. Postmodern Feminists believe the 'otherness' is something that should be embraced and celebrated as part of being a woman. What needs to be demanded of the law is an entrancement of this same ‘otherness.’ In addition, the question needs to be asked, how law can do something and help women with this achievement?
Relational feminism argues that women are socialized differently from men and this produces a different moral perspective when it comes to relationships. Like the Postmodern Feminist, Relational Feminists argue that this is not something that needs to be overcome. Instead the public sphere must change and adapt to be more like the relations women have. Patriarchy and male relations have an emphasis on autonomy of the individual’s protection, like in Paternalism and the belief in the individual's autonomy. This is not how women are raised to look at their relationships. Women cannot separate themselves from their relationship (i.e. with family, children) because they are embedded in these relationships. Autonomy is therefore useless for women and not actually good for society. Women will never be the rational autonomous man, and this should not be the goal. Society should embrace the view of relations that women have been raised to have. The social and legal world should adapt to this new way of thought. It would be beneficial for men and women.
Radical Feminism argues that patriarchy is so deeply rooted in society that change will only be achieved through fundamental changes in the basic structures of society. The fundamental ideas of what it is to be male or female need to change and socialization of the younger members of society needs to reflect that. There is a focus on the social construction of gender within patriarchy. They argue that it is impossible to understand what female-ness is without first, fully, dismantling patriarchy. In addition, the biological reality of women needs to be given significance in law. For example, law needs to recognize the work of raising children and the relationship that develops between the mother and the child.
McKinnon’s feminism: Law as a male power
McKinnon, an influential feminist theologist, argues that law is the site which protects the centre of patriarchy by making it invisible and legitimate in its adoption of the “male point of view”. Law does not need positive law to dominate women, it does this through its very structure. This is present in the role of the judiciary, which upholds patriarchy in its precedence. Rights are an illusion: a way to uphold the male autonomy (or domination of women) in the cloak of “freedoms” or “rights”. She argues that women need to demand actual equality through law as part of changing the state’s relations to women and women’s relations to men. There are two main steps in achieving this. First, is to claim women’s concrete reality. This is similar to the Relational Feminist view: embrace the reality of women (the otherness). Second, is to recognize male power over women that is embodied in law.
Application to R v O’Connor
The result of R v O’Connor was a five-stage analysis that allows for a case-by-case balancing act between a victims privacy rights and an accused right to full answer and defence. As mentioned earlier, the court then looks at principles, ideas of justice and/or morality to make the decision of whether or not the information is relevant and should be disclosed to the defence. While Liberal Feminism accepts Dworkin’s principles ruling together with law, feminism in general would not agree with the holding in this case.
The court recognizes the necessity to severely limit the disclosure of third party information and place an “onerous” burden on the accused to prove that the records are “logically probative” to an issue at trial. The dissent would have limited this process further, taking the primary viewpoint of the victim. However, feminists would argue that the restrictions and recognition of problems which could arise out of disclosure of these documents is not enough. Yet all the courts, in the current legal system, are capable of doing this. This is because the legal system is designed with patriarchy as its centre. To feminists, the fact that a five-stage analysis allowing this information to be disclosed would demonstrate the deep-rooted patriarchy in the legal system.
The 'right' to full answer and defence and the 'right' to privacy are Charter grounded rights. But, as McKinnon would argue, the Charter is part of the legal system, which cloaks patriarchy. The 'right' to full answer and defence or the 'right' to privacy are rights created and determined by the traditional male lawmaker and by a legal system steeped in the power of patriarchy. McKinnon and other feminists would ask; why is the 'right' not to be victimized or re-victimized mentioned by the court? This is analogous to the examples McKinnon discusses in her article: how ‘freedom of expression' is used in the patriarchal legal system to uphold the legality of pornography, an industry detrimental to the health women. Or, when the 'right to privacy' is used to protect batterers who act out behind closed doors. Feminists would argue that although there is no law allowing for the victimization of women, this case would demonstrate how the legal system itself, is set up in a way that makes that possible.
The diversity in views of feminists create a diverging view of jurisprudence, however, the common core of rejecting patriarchy remains the same. Feminists are committed to dismantling patriarchy and improving the lived reality of women’s lives.
Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law, (Toronto; Pearson Prentice Hall, 2002)
R v O'Connor,  4 SCR 411
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.