I want to return to the Québec Bar’s challenge against the constitutionality of all the mandatory minimum sentences increased or created by Bill C-10, the “tough on crime” omnibus bill adopted by Parliament earlier this year, about which I blogged here earlier this week. One of the grounds of possible unconstitutionality which the Bar raises in its application is that the new mandatory minimums infringe judicial independence and separation of powers. I think that this argument is badly mistaken.
The Bar argues that judicial independence and separation of powers (which amount to the same thing, because what is at issue here is the separation of the judicial power from the legislative) require that the judiciary enjoy complete autonomy in the exercise of its functions. In particular, the legislative power cannot interfere with “the law courts’ exclusive function of issuing orders based on law and evidence” (par. 92 of the application). In criminal cases, it is the courts’ role to give a sentence based on the evidence and considerations of proportionality, appropriateness and justice. This judicial function is essentially discretionary. Interference with that discretion is therefore an interference with an essential adjudicative function. And, of course, a minimum sentence takes (some) discretion away from the judge. Imposing a minimum sentence oversteps the constitutional boundaries between Parliament and the judiciary. Furthermore, the Bar submits, “this judicial discretion is necessary for judges to be able to deliver just decisions, the very foundation of the courts’ legitimacy” (par. 101).
These arguments prove too much. If they were accepted, not only the minimum sentences at issue in this challenge, but also any legislative interference with sentencing discretion would be constitutionally prohibited. Such an outcome would be neither sound in principle nor justified by the law.
If it were true that separation of powers required judges to have the discretion to set sentences that they deem just and proportional, then no statutory limits on that discretion would be permissible―neither mandatory minimums nor mandatory maximums. If untrammelled discretion in sentencing is constitutionally required, there is no ground on which to distinguish a mandatory minimum from a mandatory maximum. If, say, a judge feels that a man who stole the last piece of bread of a poor little old lady deserved a harsher punishment that the maximum of two years’ imprisonment set out in s. 334 of the Criminal Code for theft under 5000$, he ought, if we follow the Bar’s reasoning, to be constitutionally free to do so, as much as a judge ought to be free to disregard a mandatory sentence of imprisonment and not to send a man to prison for growing a couple of marijuana plants. But the Criminal Code imposes a mandatory maximum punishment for every single offence it creates―and nobody, to my knowledge, ever thought that somehow wrong. I very much doubt that the Bar thinks so. Judicial independence is important, but it does not include the power to make laws; indeed, separation of powers requires that power to be left to the legislature (subject possibly to a role for the judiciary to develop the law―but subject, in turn, to legislative over-ride). And the power to make criminal laws has always included a power to prescribe a penalty. We impose constitutional limits on this power, in particular in s. 12 of the Charter, which prohibits cruel and unusual punishment. But that has nothing to do with judicial independence. Power must be checked and limited. The legislature’s power to change the law―including in ways with which the judiciary might not agree―is probably the most important check on and safeguard against the power of the judges.
The Bar invokes a couple of Canadian cases to support its claims that sentencing discretion is a requirement of judicial independence, but in my view, its use of these precedents borders on bad faith. The first, R. v. M. (C.A.),  1 S.C.R. 500, concerned the power of an appellate court to vary a sentence imposed at trial. It is in this context that the Supreme Court held that sentencing was discretionary―within the bounds set by the Criminal Code―and therefore subject to deferential review on appeal. This does not prove that Parliament cannot limit the sentencing judges’ discretion. Indeed, the Supreme Court noted that the Criminal Code usually prescribes a maximum punishment and sometimes a minimum, though minimum sentences are sometimes subject to suspicion under s. 12 of the Charter. The other case, Ell v. Alberta, 2003 SCC 35,  1 S.C.R. 857, concerned the independence of justices of the peace. It mentions the justices’ discretionary powers over bail―not sentencing―a procedure which is thoroughly regulated by the criminal code. The Bar also invokes a Privy Council decision, Liyanage v. The Queen, but that concerned what was effectively a bill of attainder enacted as retribution against specific political opponents. As much as we may detest the government’s “tough on crime” programme, it is a far cry from that.
Mandatory minimum sentences may, in many cases, be cruel, disproportionate, and even irrational. Courts have already struck down a number of provisions imposing them, and are likely to strike down more. But judicial independence has nothing to do with it. The Québec Bar’s arguments on this point are misguided and very weak. I’d be astonished if they were accepted.