Tuesday, 4 May 2010

The Law is Ordinarily an Ass

If that's what the law supposes, sir, then the law is a ass! If that be the eyes of the law, sir, then the law is a bachelor! (Mr Bumble, Oliver Twist)

SENATORIAL by-election candidates will be formally nominated in three weeks - but it is still not clear whether Stuart Syvret will be able to stand. The election is being held to fill the position left vacant by former Senator Stuart Syvret, who was forced to vacate his seat after being absent for six months. Mr Syvret, who is in self-imposed exile in the UK, wants to stand in the election, but it is thought he may have been out of the Island for too long. The Attorney General, Tim Le Cocq, said yesterday that it was not for him to decide whether Mr Syvret could stand for re-election - it was a matter for the Royal Court.(1)

In the United Kingdom, the Attorney-General is able to give Tony Blair's government advice on whether or not it can invade Iraq. But in Jersey, it seems that the Attorney-General is not even able to offer advice on what "ordinarily resident" means! This is the ground for eligibility in the above mentioned election, and so far we have no way of knowing how it applies in Jersey!

There have been cases where this has been tested in courts by other Attorney-Generals have argued the case in Courts. In particular, Canard v Attorney-General of Canada and Rees, there was a significant judgement made relating to "ordinarily resident". The background to the case is that Mr Canard was killed in a traffic accident on 6th July 1969. He died intestate. A Mr Rees was appointed as administrator of Canard's estate on 1st December 1969, pursuant to the Indian Act. On 18th March 1970 the Surrogate Court of the Eastern Judicial District of Manitoba issued letters of administration of Canard's estate to the plaintiff. Mrs Canard challenged this on the grounds of "exempting provisions" in the Indian Act which depended on showing where Mr Canard had been "ordinarily resident".

The defendants - the Attorney-General of Canada and Mr Rees, the government appointed administrator, then counterclaimed for a declaratory judgment declaring Mr Rees to be the lawful administrator of Canard's estate and declaring the appointment of the plaintiff (Mrs Canard) as administratix to be void; they also sought an injunction restraining Mrs. Canard from acting as administratrix; and an order impounding her letters of administration.

But the Attorney-General lost the case. The Court found for the plaintiff.

Held that plaintiff was entitled to the declaration sought; the words "ordinarily reside" were not defined in the Act but had been the subject of frequent judicial interpretation. The authorities were to the effect that a person could have more than one "ordinary residence", according to the particular facts.

Some very detailed investigation of case law, and statute law was considered, including recourse to dictionaries. Significantly the following was noted:

1) Lack of Definition in Statutes

The words "ordinarily reside" are not defined in the Indian Act. The term has been interpreted in a number of cases dealing with a variety of different situations -- reciprocal enforcement of judgments, qualifications of electors, jurisdiction of the court over a debtor, revenue statutes, etc.

2) The Definition is not Invariable

"The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance 'residing' is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new.

3) Dual Residence is Quite Possible

See Attorney-General v. Coote (1817), 4 Price 183, 146 E.R. 433, where the Court was considering the Property Tax Act, 1806 (Imp.), c. 65. Wood B. said at p 188: "It is no uncommon thing for a gentleman to have two permanent residences at the same time, in either of which he may establish his abode at any period, and for any length of time."

The conclusion brings these elements together:

"Two fundamental elements are essential to create a residence, and these elements are: (1) Bodily presence in a place. (2) The intention of remaining in that place. Residence is thus made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Neither bodily presence alone nor intention alone will suffice to create a residence. There must be a combination and concurrence of these elements, and when they occur, and at the very moment they occur, a residence is created."

It would appear from this that intention must play a great part, but proving intention can be difficult. Obviously public statements by Stuart Syvret must play a part, but his liking for rhetorical flourishes, and exaggerated hyperbole mean that it is not always possible to determine what he may intend. Consequently, his actions - such as payment of tax and social security, and also where he would qualify for free healthcare - would probably play a stronger part.

As far as healthcare goes, in 31 March 2009, the Minister for Health said that as far as health was concerned "If an individual is ordinarily resident in the United Kingdom, by definition they cannot be considered ordinarily resident in Jersey as well" (It is not known whether they took legal advice before making this reply to a question, as the U.K. only considers ordinary residency there, and makes no statement about that excluding any ordinary residency elsewhere; however, the Attorney-General did not interrupt or comment on this being wrong, so perhaps silence gives consent?).

It seems strange that such a definition as "ordinarily resident" which is so mentioned in statutes across the world has no firm definition; however, there is a sizable body of case law in a multitude of jurisdictions, and it seems strange that Jersey's Attorney-General is not even prepared to give advice, even if it may be - as in Canada - tested in the Courts. Yet in order to test it in the Courts, the Attorney-General in Canada must have already had a view on the matter - or there would have been no court case.

If the States asked for a definition of "ordinarily resident" would the Attorney-General be able to supply it? It seems bizarre that he would not, given the multitude of States laws which incorporate that very term. Anyone might think he was trying to avoiding making any statement which might be later tested by the courts and found wanting.

(1) http://www.bbc.co.uk/iplayer/episode/b00s3h84/Inventing_Divorce/
(2) http://library2.usask.ca/native/cnlc/vol08/099.html

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