Becker v. Pettkus: limits of the law: this new feature profiles a famous Canadian case from the past that holds considerable public and human interest. It explains what became of the parties and why it matters today.

• Date: 01 January 2009
• Author: Bowal, Peter

Limits of the Law

The lay public have faith in the legal system to produce just outcomes. They expect the law and legal system to come to their rescue when they need it. But, lawyers are keenly aware every day that the law and legal system, as human institutions, have their limitations.

There are many limits to the law. One is unintended consequences. When legislators and judges make a law, they usually have intended consequences; to assist some people or remove an existing injustice. Yet they can never be sure how these new laws will play out in practice. Often the new law backfires and causes an unfortunate result that no one predicted. An increase in the minimum wage, for example, might mean that fewer of those jobs may be available, effectively hurting the same people the lawmakers sought to assist. Regulations designed to help people may hurt the same people.

Too many laws, and illogical or unjust laws, can give rise to black markets or civil disobedience. People find ways to get what they want by going around the law. A Supreme Court of Canada decision, or even a sentence or paragraph within a decision, may lead to even greater uncertainty or disputation. After the Askov case on what was a reasonable time for trial under the Charter, it was reported that thousands of accused criminals, some charged with very serious crimes, were released. Later the judge who wrote the decision said this was not what he intended. A Supreme Court of Canada decision in late 1999 about native fishing rights set off clashes along racial lines over east coast fishing. The Court took the rare step of issuing a press release to explain that its decision was not as broad as people had understood.

These limitations arise because legislatures and courts are too often called upon to cure all the ills of society. They are not equipped to do that. The law is very limited in its ability to change people's attitudes and opinions. Law reform and justice are agonizingly slow. Political priorities may not correspond with true justice priorities. Human factors such as the discretion, ignorance and the obvious inability to enforce every law all of the time also limit effectiveness of the law. Judges will simply be wrong in some decisions, and legislatures will adopt ineffective wording in some of their statutes. The written word has limitations.

The Facts in Becket v. Pettkus

The case of Becker v. Pettkus ([1980] 2 S.C.R. 834) is a tragic example of how law and justice...