Conclusions and Recommendations
This study has examined the issues involved (and too often overlooked) in decided legislative policy as to the extent of investigative powers given administrative and regulatory agencies. At the beginning we said that the present balance in B.C. legislation seems weighted towards the agencies and away from the rights of individuals. We analyzed the American example with the interplay between constitutional rights of citizens and legitimate and worthy governmental programs. In the U.S. the balance is still shifting back and forth as various forces debate the application in practice of individual rights and collective goals. Previously we pointed out the tendency of Canadian courts to say they will construe strictly laws which invade the traditional rights of citizens. Thus, where the legislature merely confers a power of entry to private land the courts say refusal of consent to entry is not an offence. Where a statute authorizes entry by force if necessary or imposes some penalty on refusing entry our courts cannot help the citizen. The legislature, as the voice of ours country’s collective will, is sovereign and what it commands is the law. We have no constitutional limits on the legislature’s power when the legislature is acting within its jurisdiction (ie. federal or provincial jurisdiction). Because of this our legislators should be pressed to take care when drafting and passing laws that they do not lightly wipe away privacy and other rights long enjoyed by citizens.
Professor Wexler observes that the social welfare state is ’essentially coercive’. He argues that its intention is to be helpfully or constructively coercive. It seems that a reflex action of modern governments is that when a problem arises a new administrative agency must be created to handle it. We witnessed this last on the provincial level in B.C. in 1977 when several travel agencies went bankrupt and their customers were left without anything for all the money they had paid. The government had the option of making mandatory some kind of travel agents’ insurance program whereby customers of travel agents would be able to claim on the insurance should the agent go out of business. Instead the government introduced a comprehensive regulatory scheme and set up a Registrar or Travel Agents to supervise all the activities of those in the travel promotion business. The Registrar “needed” power to regulate effectively and so he or she was authorized to inspect books and records, bank accounts, financial situations, and other matters. This individual was empowered to freeze assets and to try to ensure that no one absconded with the payments by travelers. This program can be described as overkill to a not-so-serious problem. It represents the norm in governmental response to these types of problems. The state has taken on itself a “helpfully coercive” role in areas that could likely manage equally well without so much bureaucratic “assistance”.
Professor Wexler’s essay concerns discretion. He describes it as an oft-forgotten aspect of the law. He criticizes the rule-model, depersonalized, objectified decision-making which he says bureaucracies attempt to use as a model. He claims they fail in their attempt. Discretion is the greater part of their role. Professor Wexler continues his discussion by asserting that if discretion is the major part of an administrator’s role than education as to the proper use of discretion should be given more emphasis. This line of thought fits in with the English approach to policing interpersonal relations as noted by R. Thomas Farrar. The English tend to trust their police and others in authority to exercise the powers given them with reasonableness and common sense. Farrar contrasts this with the American distrust of those in authority and desire for limits and constraints to be in place as a check on the exercise of power. These are tendencies not absolutes. Professor Wexler feels that discretion is too large a feature of administrative action to be ignored but he does not contend that rules and guidelines be abolished. Rules exist to point administrators in the right direction. The “helpfulness” of the coercive modern welfare state arises from the rule and laws that exist.
It is our view that a greater structuring of discretion by rules is necessary to protect and enhance civil liberties. We note of the Guaranteed Annual Income for Need Act that this statute does not require welfare home visits. The informal practice of the Ministry of Human Resources effects such a requirement. This may be seen as an exercise of discretion (it may be a conscious or unconscious choice by the Ministry). We feel that the exercise there is wrong. Structuring discretion by legislating policy guidelines (i.e. that welfare not be denied by or suspended because of a refusal to allow home visits) would be wise. It might be asked what is really gained by allowing a choice over whether the “helpfully coercive” state will be allowed by an individual to “help” him or her out. If the collective has decided that some program is indeed helpful it seems odd to allow recalcitrants to defy being “assisted”. Such an arguments runs completely counter to what we endeavored to show in the first few chapters of this paper. If individuals are to mean anything at all, if they are to be recognized as each possessing an inalienable dignity, they must be accorded a degree of independence. Within certain bounds individual moral agents must be given room to act out their own lives, to achieve a degree of self-fulfillment. If non-conformity is the price to pay then it is hardly a loss. Non-conformity is a dynamic force. It may be easier to administer a timid and conformist nation but those stultifying tendencies are not characteristics we should stressing and developing. The theoretical justification of the welfare state is often given as being the provisions for all the means to be free. Positive freedom is to be the hallmark of the intrusive state. But it is a hollow freedom indeed, if the acts we are free to do are “helpfully” coerced. Some space must be preserved in which individuals may make their own choices. To that end limits on the power of the collective must be imposed. Discretion must be structured.
An inspection warrant requirement
Previously we noted that mere power of entry to property with no sanction attached to refusal of entry by the occupier was what many statures prescribed. With the creation of a warrant requirement (which we recommend be along the lines suggested in the California Code or the American Law Institute’s Model Code of Pre-Arraignment Procedure) we do not want to increase the power of the administrators who presently have a power of entry with no sanction backing it. Indeed, ideally we wish that these kinds of officials be required to tell people of a right to refuse consent at the time they requested permission to enter and inspect. Our recommendation of a warrant requirement is meant to include such statutes as the Workers’ Compensation Act, other labour-related laws, the Human Rights Code, taxation laws such as the Coloured Gasoline Tax Act, and similar statutes that attach penalties to refusal. Statutes that presently have a warrant requirement could have its scope increased. An example of this is the Trade Practices Act. That law provides for a search warrant to be obtained if the Trade Practices Investigator and the Director of Trade Practices wish to search something held in a private residence’s safety deposit box, or other place other than the normal business premises of the inspected party. In spite of the view we have noted several times previously that business premises have less of a privacy need and interest than residences we feel that the safeguard that a warrant requirement would give justifies making it necessary for a warrant to be obtained for non-consensual searches of business premises. We should note one more reason against a warrant requirement in such circumstances suggested by an official: requiring a warrant taints the investigation with a criminal flavour while one of the avowed purposes of the consumer protection laws is speedy, civil, and friendly resolution of consumer complaints. Nonetheless we feel a warrant is desirable. A warrant would only be necessary in non-consensual cases and would not be ex parte unless surprise was deemed essential.
Laws allowing public authorities to enter private land and effect various works or repairs (see the Agricultural Land Commission Act, Coal Mines Regulations Act, and Soil Conservation Act) should require warrant-like authorization from a judicial officer before work is done. Of course, in emergencies the work should be proceeded with before recourse to the courts.
Studies such as that done by F.W. Miller and L.P. Tiffany and Paul Weiler showing that Justices of the Peace or other warrant-issuing judicial officers rarely dispute or disallow warrant applications are indeed a concern. The argument that a rubber-stamping Justice of the Peace is merely an example of how the system is not supposed to operate is weak. People who feel administrators are equally as competent and just as judges and that judicial review (or preview) by a warrant requirement is unnecessary can claim that if the administrative system functions properly it would avoid injustices and errors. An answer to that is that administrative agencies are set up to ensure speed, cheapness, and efficiency in routine matters and that with those goals they are more likely to render injustice than judicial institutions set up to uphold the law and justice. Requiring a warrant will not be necessary in routine matters. It will be necessary in special matters when privacy and other individual and group rights are concerned. Another point to be noted is that in contradistinction to ex parte criminal search warrants, inspectorial warrants would in most cases be awarded after an adversary process in which both inspector and inspected could make their case.
In our discussion of the U.S. experience we noted that some courts have held that uninformed consent to be inspected was still consent and so the rule excluding evidence uncovered by non-consensual warrantless searches did not apply: U.S. v. Thriftimart. We feel that consent inspections should be consent inspections and think that inspected persons should be informed of their right to refuse a warrantless search. This rule should especially apply, as we noted earlier, where the legislature has granted an administrative agent a power of entry but has no attached no sanction to refusal by the inspected. Obviously in such cases inspection is not valued too highly; it is not deemed essential. In cases where recourse to a warrant is available as to the officer the need for informed consent seems valid as well. Our concern in this area is the appearance of “bullying” which naturally arises when an officer of the government asks entry for purposes of inspection and implicit in his or her request is the pretence of having lawful authority to require inspection. If the legislature attaches no sanction to refusal then the inspection demand is a trick.
In the U.S. evidence coming from involuntary searches is generally inadmissible in court in prosecutions against the searched party. Canada has no such rule, although we do have a rule excluding involuntary confessions but it is not so wide as to cover physical evidence discovered during a non-consensual search. The provincial government could make the U.S. rule apply to provincial penal proceedings but that seems most unlikely. The argument against the U.S. exclusionary rule is, briefly, that it allows the obviously guilty person to go free. A more politically acceptable remedy in B.C. might be to have it made a special tort for an administrative official to effect a non-consensual inspection. The tort could be framed so as to be heard by the provincial Ombuds person. It would be similar to that proposed by Paul Weiler for abuse of police powers and wrongful arrest. Weiler suggests that police be seen mere as administrative agents; this new tort could include them and all agents of the government. Mr. And Mrs. McManis, writing in the American University Law Review, suggest a similar tort action for improper administrative inspections. As Weiler suggests, the rot could be made a strict liability, one with a $1000 minimum damage award (this would compensate for cases where illegality was discovered as a result of the non-consensual inspection; without a minimum the tendency of the adjudicator in this tort action would be to award nominal damages). Further following Weiler, it would be best that the Crown pay any damages. Many statutes presently confer immunity on administrative officers who act in good faith. Only in cases of bad faith should the officer personally feel the sting of the damage award. A difficulty with this “solution” to the non-consensual inspection problem is that often the penalty for breach of a regulatory law is a fine and by giving a damage award we reduce the fine’s effect. The answer to this is obvious: the wrong done by the government to the individual should be compensated just as the wrong the individual did by breaching the regulatory law requires punishment.
At the beginning, we noted Professor Wexler’s discussion of discretion. The laws of the legislature are mere words on paper. Their application in the world of practice necessarily involves interpretation and discretion. Previously we pointed out that home visits are informally made mandatory in B.C. In many cases the welfare recipient welcomes these home visits by Financial Assistance Workers and other social workers. In some cases we are sure that the visits are tolerated as a necessity in order to obtain the government largesse. Professor Wexler suggests that administrators be given better training in how to exercise their discretion. At page 104 of his work he notes that authority and liberty are partners whose dynamic relationship must be viewed as a partnership for any proper balance to be worked between the two:
The people about whom decisions are made must learn to see authority as reciprocal. They must begin to exercise their own authority.
This call has a nice ring to it but in practice it is just not taking place. Persons dependent on social assistance need a special boldness to act out an assertive will. Without wishing to idealize her at all as the facts of the case show her to be a substantially less than perfect individual, Mrs. James in the American case of Wyman v. James would seem to fit the mold in which Professor Wexler calls on all recipients of welfare to reform themselves. Mrs. James asserted her privacy rights. Unfortunately she lost.
Given that the general attitude of recipients of welfare is not to act belligerently as to privacy rights it would be wise to emphasize when training welfare workers that they remember always to be sensitive to the privacy of their clients. Structuring their discretion by legislating that home visits are not mandatory would be of assistance in pointing the law as it exists on paper in the right direction but effecting attitudinal changes of the administrators of that law is of equal importance. This concern applies beyond the bounds of welfare workers. Property tax assessors, health, fire, and other inspectors should all be instructed in the sensitive use of discretion.
Limiting the use of information
In the last chapter we noted information sharing between the various agencies of government. This should be stopped and legislation in the form of a general privacy law would best do the job. Individual pieces of information about a person from individual minor invasions of privacy may be relatively harmless on their own but when molded together into a composite the minor invasion of privacy becomes quite substantial. It seems odd that a legislature whichs et up a regulatory scheme to police the activities or private credit reporting agencies (in the Personal Information Reporting Act) should be so slow to regulate its own affairs. The damage private personal information reporting agencies may do is limited when compared with what the modern massive government can do. Hypocrisy is the term which springs to mind information reporting are applied to private agencies and not to public ones.
It is difficult to raise the mundane matters of health, fire, weed, tax, bees, mil, meat, electricity, gas, plumbing, zoning, brand, motor vehicle, labour standards, and other inspections to a lofty plane. These concerns dwell in the realm of practice and practice is where they stay. When they touch upon the lives of individuals they intrude, to a greater or lesser degree, upon a freedom. Some intrusion is inevitable in any society, and all the more inevitability of gigantic regulatory schemes it is incumbent upon us to put limits on those schemes. The collective that orders itself so as to assume such programs must not be allowed to forget the individuality of its members.
What is necessary is a balance between privacy concerns and collective goals. The present balance in B.C. is misplaced. The concerns of the individual deserve more recognition and respect. Recognition may be manifested in statutory change; respect may be shown by the attitude government agents display.