The Woodlands Settlement – proof the courts can still get it horribly wrong

The recent settlement compensating some of the children abused at the Woodlands school excludes pupils abused and tormented before the year 1974. Prior to 1974 the crown of British Columbia had immunity from criminal proceedings – in other words the province was above the law. According to this article from the BC government website:

“the provincial government recognized that the special immunity of the Crown was unfair and enacted the Crown Proceedings Act .5 That Act expressly provides that the provincial government is liable in the same manner as if it were a person.”

The act itself, cited from the above paper, calls crown immunity:

“a relic of the mediaeval age when the King could do no wrong. … where the subject had to go on bended knee to seek from Ministers of the Crown the right to sue the Crown… [It] is a relic of the time of the divine right of kings and should have no part in our modern jurisprudence.”

However, we can learn from Matthew Good:

“In the 2005 case Arishenkoff v. British Columbia, the court found the Crown and its agents couldn’t be held liable for any wrongdoing prior to the implementation of the Crown Proceedings Act of August 1, 1974.”

So, according to the 2005 ruling by the B.C. court of appeal, it was wrong for the province to hold crown immunity – but it is not wrong that they held crown immunity prior to 1974. This undercuts the moral arguments for the 1974 decision in the first place. If the only reason why it is wrong to have crown immunity is that a court decides it is wrong to have it, and the decision is not grounded in the reality of what is right, then the only rational thing to do would be to simply grant as much crown immunity as civil unrest will bear (it becomes a tactical question of realpolitik).

This is the worst kind of positive law – the kind which pretends to be natural (that it would be simply wrong for the crown to have this immunity today), but at the same employs the logic that the state had the immunity just so long as it didn’t admit that it didn’t have it. In other words, the state’s words make the moral law, rather than the the moral law dictate the words that it is right for the state to speak and make into law.

The implications of this 2005 court of appeal decision are nothing less than morally despicable. The picture on the left is of a concentration camp in which Canadians of Japanese ethnicity were held during world war two because they were under a racist suspicion of being spies. According to this decision, the state can not be held liable for this racist internment. Furthermore, should B.C. have gassed its Japanese civilian war time prisoners during this time, British Columbia would simply not be liable for its actions, even if it declared in retrospect those actions to be absolutely morally abhorrent. I needn’t mention that it also absolves the state from ever having to repay the goods that were outright stolen from British Columbians of Japanese ethincity during the second World War.
Would we stand for the decision that the state only becomes liable after it passes a law making itself liable for Germany at the end of WW2? For Spain during the decline of fascism? Of course not. The laws that exist at some point do not determine the liability unless those laws are right – if the laws are wrong, they must be replaced with right laws, which will determine liability in the correct way. If we are serious moral actors, we hold ourselves to the same standards to which we hold others. It greatly concerns me that the B.C. court of appeal lacks this seriousness.

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