What Was Equilibrium Like?

Do police need a warrant before pretending to be a child to attract would-be molesters?

It’s been some time now, but the Supreme Court’s decision in R v Mills, 2019 SCC 22, is worth a comment. This is yet another case in which the Court had to address the application of the right, protected by section 8 of the Canadian Charter of Rights and Freedoms, “to be secure against unreasonable search or seizure” to new-ish technologies. These cases often divide the court, but seldom as much as Mills, where Justice Brown signs a leading opinion for himself and Justices Abella and Gascon; Justice Karakatsanis has a concurrence to which the Chief Justice signs on; Justice Moldaver agrees with Justice Brown (whose opinion is thus, in effect, a majority one) and Justice Karakatsanis; and Justice Martin also concurs, but on grounds quite different from her colleagues’.

The issue in Mills had to do with the privacy interests that one might have in one’s online conversations. Justice Brown usefully sets out the facts. The case developed from

a sting conducted by a police officer, who posed online as a 14-year-old girl, with the intent of catching Internet child lurers. Over two months, [Mr.] Mills sent several messages, using Facebook and Hotmail. Eventually, he was arrested in a public park where he had arranged a meeting with the “child”, and was charged … with luring a child via the Internet. The entire operation occurred without prior judicial authorization. Using a screen capture software, the police introduced a record of the emails and messages as evidence at trial. [2-3; paragraph break removed]

Mr. Mills alleged a violation of his section 8 rights, and sought to have the evidence excluded. To decide whether his rights were indeed at stake, the Court must determine whether he had a subjective expectation of privacy in the subject-matter of the alleged search or seizure, and whether this expectation was objective. As usual, it is this last question ― as Justice Brown notes, a “normative question about when Canadians ought to expect privacy, given the applicable considerations” [20; emphasis Justice Brown’s] ― that causes difficulty here.


For Justice Brown, the key to the case is to be found in “the nature of the investigative technique used by police, and the nature of the relationship between the communicants [sic].” [20] In Justice Brown’s view, in light of children’s special vulnerability, “adults cannot reasonably expect privacy online with children they do not know” [23] ― or persons whom they believe to be such children. The relationship here was one between strangers ― since the purported child was in fact a creature of the police ― and the police, obviously, knew this before they started looking at the communications between that “child” and the accused. Unlike in cases where the police intercept or obtain communications between individuals the nature of whose relationship to one another they do not know, they can be certain of breaching no one’s reasonable privacy interests, and so do not need judicial authorization.

Justice Karakatsanis also finds that Mr. Mills could not reasonably expect the messages at issue to remain private. But in her view, that is because the state, acting through the undercover police officer, was the other party to the conversation, and one cannot expect one’s messages to remain private from the party to whom one deliberately sends them. Police officers do not infringe anyone’s privacy rights be speaking to them, even when they are undercover. Conversations via online messaging or email are no different. While the surreptitious recording of what is ostensibly a purely oral conversation makes what was meant to be ephemeral permanent and so has privacy implications, this issue does not arise when writing was the originally chosen medium of communication. Justice Karakatsanis alludes to concerns raised by interveners about police officers posing as persons to whom individuals might want to confide personal information, but decides that they need not be addressed in this case.

Justice Martin takes a different view of the privacy concerns raised by Mr. Mills. For her, the case raises the issue of “whether the state should be permitted to conduct warrantless surveillance of private, electronic communications, or whether that state surveillance should be regulated”. [72] The answer is that “[i]f the police wish to acquire a record of those communications, … such investigative activities must be regulated. The precise nature of such regulation is best left to Parliament”. [72]

Like Justice Karakatsanis, Justice Martin refers to the distinction between transient and permanent communications. But to her mind, the salient point here is that the distinction is being erased:

Online communications are inherently recorded. Where the intrusive technology used to be in the hands of the state, it is now in our back pockets. … [T]he electronic communications in the case at bar constituted both the conversation and the surreptitious electronic recording of that conversation. [86; 93]

Justice Martin endorses the concerns expressed in cases going back to the 1970s that people will, in effect, self-censor if they know that their words may be recorded and publicized. Indeed, Justice Martin worries about government “subjecting the public to surreptitious electronic surveillance on a mass scale”. [103] And since technology makes the existence of recordings inevitable, there need to be robust protections for their privacy. Nor can the state get around these protections by impersonating someone to whom a citizen may wish to speak privately; if it does so, the fact that the recorded words were addressed to the state agent is beside the point. On the contrary, “[t]he ability to fabricate alternative identities has never been more possible [sic] than it is now”, [106] and this reinforces the need for safeguards against the state taking advantage of this ability to elicit private information from citizens.

Justice Martin is also unimpressed by Justice Brown’s approach to the case. She thinks it inconsistent with the usual, content-neutral approach to section 8 cases. More importantly, saying that communications occurring between particular types of people ― such as those between an adult and a child who is a stranger to him or her ― are necessarily excluded from the scope of section 8 is inconsistent with that provision’s text, which guarantees rights to “everyone”, and

seeks to put courts in the business of evaluating the Canadian public’s personal relationships with a view to deciding which among them deserve Charter protection … Judicial (dis)approbation of an accused’s lifestyle has no place in the s[ection] 8 privacy analysis. [110]

Ultimately, however, Justice Martin finds that while the police breached the accused’s Charter right to be secure against unreasonable search and seizure, admitting the evidence they collected would not bring the administration of justice into disrepute. Thus she agrees with her colleagues about the result of the case, if little else. (As previously discussed here by Peter McCormick, Mills will count as a unanimous case in the Supreme Court’s statistics. It is anything but!)


To a striking degree, Mills illustrates Orin Kerr’s “equilibrium-adjustment theory” of constitutional protections against unreasonable search and seizure. In a nutshell, this theory posits that “[w]hen new tools and new practices threaten to expand or contract police power in a significant way” as compared to a (hypothetical) “year-zero” balance, “courts adjust the level of [privacy] protection to try to restore the prior equilibrium”. (480) Here, the tools and practices ― available both to the police and to the citizens (criminal and law-abiding alike) are online communication platforms that combine possible anonymity with the recording of conversations (and so, as just noted, the erasure of the demarcation between the spoken and the written word).

As equilibrium-adjustment theory predicts, Justices Brown, Karakatsanis, and Martin all frame their reasons as means to preserve or restore a balance of privacy that these developments threaten to disrupt. Thus Justice Brown insists that the means used by the police in this case “did not significantly reduce the sphere of privacy enjoyed by Canadians”. [20] For her part, Justice Martin argues that the “Court must identify the privacy interest [previous] cases sought to protect and ensure that it remains protected as the communication environment evolves”. [90] Justice Karakatsanis is perhaps a little less explicit about her own effort at equilibrium adjustment, by her insistence that written communications have not, in the past, been treated in the same way as oral conversations, and should not be so treated now is also in that vein, as is her concern that “[t]he alternative conclusion would significantly and negatively impact police undercover operations, including those conducted electronically”. [52]

But while all the judges in Mills agree on the importance of preserving the balance between privacy and the ability of police to investigate crime, it is not so clear where exactly that equilibrium really was. At equilibrium, was it the case that adults had no privacy rights in their relationships with children who were strangers to them, Justice Brown suggests? Or that the written word was not private in the way the spoke word was, as Justice Karakatsanis argues? Or, on the contrary, that all relationships, regardless of the parties’ status, and all conversations, regardless of the means used to carry them out, were entitled to privacy protections, as Justice Martin suggests?

Justice Brown’s attempt at defining equilibrium does not persuade me. As Steven Penney wrote in his (rather timelier than mine) comment on Mills on the University of Alberta Faculty of Law Blog, it is difficult, if not impossible, to tell when two persons are “strangers” to one another:

What degree of familiarity with an online persona is required before he or she ceases to become a stranger? Is it necessary to have met the person face-to-face in the offline world? Or is it enough to have had prior oral conversations (whether audio-only or video chats) online? And what, if any, degree of identity verification is required?

Meanwhile, the concept of “children” seems perfectly well-defined, in this context, as people under the age of 18, but this clarity might not be all it seems (because people lie about their age), and comes with its own set of problems. Are close-in-age relationships different? What about relationships between two minors? Why, indeed, draw a hard line at 18, especially outside the context of sexual crimes? Alternatively, must investigations of sexual crimes be treated differently than those of, say, terrorism?

One is tempted to suspect (Professor Penney, I think, hints at this too) that Justice Brown was looking for a very narrow basis on which to resolve this case. But the trouble is that an artificially narrow decision in a difficult case risks both being unprincipled and simply kicking the can down the road. Justice Brown’s opinion is in serious jeopardy on both these counts; indeed, I am inclined to declare it guilty on the second, even if a reasonable doubt might exist as to the first.

But what about the disagreement between Justices Karakatsanis and Martin? Perhaps this disagreement is the latest ― and probably not the last ― manifestation of a recurrent problem in cases about the application of section 8 of the Charter, which I described here when commenting on the Supreme Court’s decision in R v Marakah, 2017 SCC 59, [2017] 2 SCR 608, a case that considered the privacy of a text messaging conversation that one of the parties handed over to the police:

A number of legal issues arising out of new technologies, broadly speaking, have to do with the erasure of the once-clear line between the spoken and the written word. The former was (usually) spontaneous and fleeting; the latter (relatively) deliberate and permanent. But electronic communications combine spontaneity and permanence in a way to which many of us are still only getting used and with which the legal system, unsurprisingly, struggles.

In Marakah, a majority of the court (which included Justice Karakatsanis) held that a reasonable expectation of privacy in the conversation existed, so that the police could not look at it without prior authorization, even with the consent of one of the parties. I think that decision could also be understood as an attempt at equilibrium-adjustment, intended to preserve the previously undoubted privacy of the exact content of personal conversations. Professor Penney argues that Justice Karakatsanis now tries attempts to “effectively overturn” Marakah.

But I’m not sure that this is fair, or that the problem of the newfound permanence of conversations is really what is driving the disagreement between Justices Karakatsanis and Martin in Mills. Justice Karakatsanis does not deny that (in Professor Penney’s words) “Marakah … puts automatically recorded text conversations on the same plane as surreptitiously recorded oral ones”. Rather, she wants to hold on to a distinction that, as I see it, Marakah did not foreclose: that between the state obtaining, by whatever means, a conversation to which it was not a party (as it had done in Marakah), and that between the state itself in effect being a party to the conversation. In the latter case, Justice Karakatsanis argues, “[t]he fact that the conversation took place in a written form … does not transform it into a search or seizure”. [45] In other words, for Justice Karakatsanis, as for the Marakah majority, oral and electronic conversations are alike; those that involve a state representative and those that do not are not.

And, so far as this goes, I tentatively think that Justice Karakatsanis is right: considered by itself, the (electronic) conversation between a suspect and an undercover police officer in Mills is not a meaningfully greater intrusion on the suspect’s privacy than a conversation with an in-person informant would have been. Of course,there is a word-for-word record of that conversation. But, as Justice Karakatsanis says, the suspect knows this in advance. It’s all good and well to proclaim that the “reasonable expectation of privacy” standard is normative, not descriptive; it’s about what people ought to expect, not what they actually expect. But the standard cannot be entirely unmoored from the facts and, in particular, from the fact that we know and indeed use tools (such as search functions) that rely on the fact that the words of our conversations are recorded in real time.

That said, there is also a different equilibrium-adjustment issue in Mills, and it is this issue which, I think, really drives the disagreement between Justices Karakatsanis and Martin: namely, whether the ability of the police to engage in online undercover surveillance will radically expand the use of this investigative technique. Justice Martin think that it will, and so wants to forestall this expansion of police power. She envisions “mass scale” surveillance, previously “inconceivable … due to the practical resource constraints of [in-person] undercover police work” [104] and because of the much greater variety of fictitious personas investigators might be able to adopt online. Justice Karakatsanis is skeptical about this (as is Justice Brown). It is very difficult to say who is right here. Justice Martin, I think is speculating about the future prospects of mass surveillance; for now, at least, I don’t see the prospect of pervasive police stings using fake online personas as anything more than a dystopian fantasy, albeit, to be sure, not an entirely implausible one. And, in fairness, Justices Karakatsanis and Brown are speculating too, hoping that this dystopia does not come to pass, or at least that its development, should it begin in the earnest, will be able to be checked then.


So let me finish with a thought on one way to help prevent the dystopian future. It will perhaps seem naïve, but I think it is actually important. There are two ways to reduce the odds of police investigations unduly intruding on citizens’ lives. One is to constrain investigations once they are launched by limiting the use of certain techniques, requiring warrants, etc. Section 8 of the Charter, and equivalent provisions of other constitutional instruments, do this but, as cases such as Mills illustrate, constructing good doctrine in such cases is not easy. The other way to keep police in check is to have fewer crimes for them to investigate in the first place. As Justice Gorsuch, of the US Supreme Court, observed just a couple of days ago in Nieves v Bartlett,

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. (Slip op. 1-2; that’s pp. 24-25 of the PDF) 

And of course, before one can be arrested, one can be investigated. Perhaps the Canadian situation is not as bad as the American one (I don’t know enough to tell) but, if so, we must work to keep it that way. And here, the Charter ― just like its counterparts elsewhere ― is not going to help us. Only sustained political opposition to overcriminalization ― and, ideally, sustainted political support for decriminalization of a great many things currently considered criminal ― will do the trick.

Bad Taste

Overzealous prosecutors in Québec charge the author and publisher of a novel with child pornography for describing a rape

Québec has a bit of a history when it comes to ludicrous prosecutions of people for their exercise of their freedom of expression. And I’m not talking about Maurice Duplessis’s time here. What I have in mind are the cases of Rémy Couture, a make-up artist who was put on trial for having produced some (admittedly gruesome) pictures and videos, and Matthieu Bonin, charged with hate speech (!) for an online rant apparently suggesting that a shooting at the National Assembly would be a good idea, though these charges were eventually dropped. Both of these took place earlier this decade. And now, they have been joined by the prosecution, on child pornography charges, of Yvan Godbout and Nicolas Doucet, respectively the author and publisher of a horror novel that depicts, on one of its 270 pages, the rape of a child.

Now, I haven’t read the novel (which doesn’t exactly sound like the sort of novel I’d read, anyhow). Since the publishing house is now busy tracking down all existing copies to hand them over to the provincial police, and worrying whether anyone who’s bought one already might be charged, there is no chance that I, or anyone, will. But La Presse quotes both a representative of the publisher and another writer as saying that the scene that forms the basis of the prosecution serves to expose the rapist as a “monster”, and that he is eventually “harshly punished”. It is very difficult to believe that a fair-minded reading of such a scene ― again, one scene in a novel ― would fit under the Criminal Code‘s definition of child pornography as “written material … that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence” or “written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence”.

Moreover, the Criminal Code provides a defence to any person who “has a legitimate purpose related to … art; and … does not pose an undue risk of harm to persons under the age of eighteen years”. The Supreme Court has explained, in R v Katigbak, 2011 SCC 48, [2011] 3 SCR 326, that this requires “an objective connection between the accused’s actions and his or her purpose, and … an objective relationship between his or her purpose and one of the protected activities”, [60] in this case art. Relying on what is said in the La Presse report, there seems to be little question that these requirements will be satisfied here. Besides, the Supreme Court added that “this objective assessment does not involve the court in any assessment of the value of the particular … artistic activity in question”. [61] Whether Mr. Godbout wrote and Mr. Doucet published a book that is great art, or even in good taste, is irrelevant. What matters is that the book in question is art, whether good or bad.

As the Supreme Court rightly noted, the courts ― and, it might have added, prosecutors ― are not well placed to be artistic critics. Their role is not to be the censors who will purify society’s morals and elevate its tastes. Lawyers and judges are not qualified for this job, and should not want to take it up even if they were. The risks of arbitrary enforcement, as well as the certainty of chilling effect on artistic freedom, would not be acceptable in a free society. A lawyer ― and any citizen who values his or her and others’ freedom ― can, however, confidently say that the Québec prosecutors’ tendency to go after unconventional artists is in very bad taste indeed.

H/t Maxime St-Hilaire and Patrick Taillon

Sentencing Judgment Found Inside a Chinese Fortune Cookie

The sentencing judgment in the Québec City mosque shooter’s case is badly flawed

This post is co-written with Maxime St-Hilaire

The sentence imposed on the accused in R v Bissonnette, 2019 QCCS 354 for murdering six worshippers at a Quebec City mosque, and injuring, in many cases grievously, multiple others is striking: life imprisonment, as for all murderers, and no possibility of parole for 40 years. This is one of the longest periods of parole ineligibility in Canadian history, and thus one of the heaviest sentences imposed since the abolition of the death penalty. Yet equally striking, and in our view insufficiently discussed (in English anyway), is the reasoning of the Québec Superior Court judge who imposed this sentence―and re-wrote the Criminal Code in order to do so.

At the heart of the decision is section 745.51 of the Criminal Code, which since 2011 has authorized―but not required―judges to stack parole ineligibility periods for persons convicted of multiple murders. The Crown invoked it and asked for Mr. Bissonnette to be subject to six consecutive 25-year periods, thus theoretically making him eligible for parole after 150 years. The defence argued that such stacking would be unconstitutional, and that Mr. Bissonnette’s periods parole ineligibility should run concurrently, as they would have before 2011, potentially making him eligible for release in 25 years.

Having reviewed the harrowing facts, Justice Huot takes the view that neither of these positions is just. On the one hand, courts ought not to “sink into excess by imposing punishment that impresses the media but is, all told, of little real significance”. [758; translation ours here and throughout] On the other, “the needs for denunciation, deterrence, and incapacitation are so pressing in this case that the imposition of six concurrent ineligibility periods would bring the administration of justice into disrepute”. [766] According to Justice Huot, justice requires that Mr. Bissonnette be ineligible for parole for more than 25 years―but less than 50. Yet section 745.51 dictates that if ineligibility periods for those guilty of multiple first-degree murders are going to be stacked, they must be stacked in full; that is to say, by increments of 25 years (the mandatory period for one such murder), on the premise that the lives of all victims are of equal value.

However, Justice Huot finds that section 745.51 is unconstitutional. In his view, it is a violation of the constitutional protections against cruel and unusual punishment (section 12 of the Canadian Charter of Rights and Freedoms) and against deprivations of liberty and security of the person not in accordance with principles of fundamental justice (section 7 of the Charter). And having so found, Justice Huot takes it upon himself “to modify … existing law” [1173] to grant himself the power to sentence Mr. Bissonnette in the exact way he thinks just.

We think that Justice Huot’s conclusions on section 12, section 7, and the remedy are all fatally flawed. His opinion is, moreover, petty (to the point, as we suggest below, of possible illegality), and lacking in rigour (even misspelling Chief Justice McLachlin’s name on a couple of a occasions). For all its prodigious length and academic, even literary, pretension, the judgment is a failure of scholarship as well as of judicial craft. We cannot comprehensively summarize Justice Huot’s reasons here, but will try to highlight their most significant defects.


Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. Justice Huot argues that

it would be disproportionate, cruel, and contrary to Canadian society’s values of justice and compassion to deny an individual who has, since his teenage years, suffered from mental health problems all hope of gaining his freedom back, if only for a few years, regardless of how abominable his crimes were. Canada is not a land where the most undesirable elements of the community are shut in a gaol and their very existence forgotten, the key of their liberty having been thrown into the river of a vast collective indifference. [845]

Of course, section 745.51 didn’t require Justice Huot to impose what he regards as a cruel sentence. It says that parole ineligibility periods can be stacked―not that they must be. Like many if not most provisions of the Criminal Code, it made possible the imposition of a maximum sentence that the judge considers excessive in the circumstances of a particular case. That, by itself, should be no reason to hold it to be contrary to the Charter.

The idea that it is cruel to, in effect, sentence a person to die in prison is also perplexing. For Justice Huot, it is nothing short of “sophistry to assert that [multiple murders] should reasonably expect, in a free, civilized, and democratic society, to spend the rest of their days behind bars, any endeavours at rehabilitation notwithstanding”. [975] Indeed, he asserts that “Canadians would consider as ‘odious and intolerable’ any sentence denying the accused a reasonable chance at conditional release in the last years of his life”. [982] Yet depending on the offender’s age, a fit and just sentence, even for a lesser crime than a hate-driven massacre, may have such a consequence. Does it, for that reason, become unconstitutionally cruel? As for Canadians, a clear majority of them apparently thought the actual death penalty “morally right” just a few years ago. To be clear, this isn’t to say that this majority is itself right. But Justice Huot has no way of knowing that popular opinion has changed. He is, we are afraid, simply making things up.

Indeed, it is difficult to avoid the impression that Justice Huot’s reason for invalidating section 745.51 have to do not so much with the risk of cruelty to the man before him, but with what he regards as “the credibility of the justice system”. [846] Justice Huot is adamant that “a simple period of 25 years of parole ineligibility of 25 years would be utterly unreasonable and disproportionate in the circumstances”. [880] That may be the case (though Parliaments from the 1970s to 2011 had not thought so), but a disproportionately lenient sentence, unlike an excessively harsh one, is not a constitutional violation. The constitution protects individuals from excessive punishment by the state, not society against insufficiently punished offenders. Justice Huot argues that it is imperative “that Parliament leave sufficient discretionary powers to the courts for them to impose on offenders sentences that” [846] will be just in all the circumstances. But, while this this argument may be sound policy, it has nothing to do with preventing cruel and unusual punishments.


Things do not get better as Justice Huot moves on to discussing section 7 of the Charter, which provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. There is little question that, by allowing the imposition of addition parole ineligibility, section 745.51 implicates the right to liberty. But is it also not in accordance with the principles of fundamental justice?

Justice Huot thinks so. Indeed, he identifies three such principles that he thinks are being infringed. The first one is the prohibition on overbreadth. Section 745.51 is overbroad, says Justice Huot, because it makes it possible for a judge to impose a 50- or 75-year parole ineligibility period on a multiple murderer who would, all things considered, only deserve 30 or 40. Again, Justice Huot insists that not imposing an excessive ineligibility period in such cases is no solution, because “it is simply unrealistic to believe that sentences of 25, 50, or 75 years of ineligibility will always be proportional”. [1051]

Second, Justice Huot says that section 745.51 infringes the prohibition on gross disproportionality, as do all punishments found to be cruel and unusual.

And, not content with these findings, Justice Huot goes on to hold that section 745.51 infringes a third principle of fundamental justice: human dignity. Now human dignity has never been recognized (or, to be fair, rejected) as a principle of fundamental justice for the purposes of section 7 of the Charter. This is no problem for Justice Huot, who breezes through the test for recognizing a new such principle. Dignity, he says, is a legal principle, because it has been recognized as a value underlying the Charter and received “express mentions in the Canadian Bill of Rights and in international agreements”. [1098] Similarly, it is the subject of a broad consensus. And as for whether respect for human dignity is a sufficiently specific criterion to assess infringements of the rights protected by section 7, Justice Huot dismisses the question in a couple of sentences: “Human dignity is a well-known legal principle. It characterizes human beings ‘in their universality’. This concept is sufficiently precise to be considered a ‘manageable standard’.” [721; references omitted].

Justice Huot’s reasoning on overbreadth is dubious, to say the least. Overbreadth more naturally describes the prohibition of conduct that should not be prohibited (because it is unrelated to the prohibition’s purpose) than to excessive punishment, which should be treated under the rubric of gross disproportionality. Moreover, his findings on both of these principles disregard the fact that the issue, under section 7 of the Charter, is whether section 745.51 may force a sentencing judge to deprive an offender of liberty contrary to fundamental justice―not whether it may prevent the judge from imposing a sentence that is exactly proportional to the crime.

But it is the casual recognition of human dignity as a principle of fundamental justice that’s most astonishing. Put to one side the question of whether an underlying or preambular value is properly characterized as a legal principle. Recall, simply, that the Supreme Court struggled for the better part of a decade to integrate human dignity into its equality jurisprudence, and gave up―recognizing in R v Kapp, 2008 SCC 41 [2008] 2 SCR 483 that “human dignity is an abstract and subjective notion”, “confusing and difficult to apply”. [22] Justice Huot, of course, ignores this. To him, the cryptic reference to human universality is guidance enough.    

Needless to say, Justice Huot’s entire section 7 discussion is an obiter, since he has already found section 745.51 a violation of section 12 of the Charter; the discussion of human dignity, doubly so, since he already finds a section 7 infringement on account of overbreadth. A prudent judge would not venture into uncharted and choppy jurisprudential waters without the need to do so. Justice Huot, however, is not such a judge.


Having (unsurprisingly) found that there is no justification under section 1 of the Charter for what he considers cruel and unusual punishment and a violation of principles of fundamental justice (and made along the way some remarkable comments, to which we shall return), Justice Huot turns to the question of the remedy. This is probably the most astonishing part of his judgment. Without having been asked to do so by either party, and without having given them the opportunity to at least make submissions on the matter, Justice Huot decides not to just invalidate section 745.51 but to re-write it so as to grant judges―starting, of course, with himself―the discretionary power to craft what they see as appropriate sentences with parole ineligibility periods of more than 25 but less than 50 years.

In the section 1 part of his reasons, Justice Huot notes that this very possibility was debated and rejected by Parliament. But he does not think that there is anything wrong with him writing a law that Parliament did not want. Democracy, he says, is not just majority rule: “It implies a legal framework that, like the Charter, protects the rights and liberties of citizens. Hence judicial review must be seen as democracy’s faithful ally. … When they intervene in the name of the Charter, judges do not act against democracy, but in conformity with it.” [1169] Moreover, having rejected Blackstone’s declaratory theory, “our common law tradition favours progressive amendment that support the adaptation of existing legal rules to new views and practices”. [1176] The re-writing of section 745.51 is, all in all, an obvious thing to do, and there is no need to go back to Parliament for its views on the matter.

This is a power grab. Justice Huot claims, in effect, that democracy and a “modern” conception of the common law allow judges to re-write statutes, so long as they do so “in the name of the Charter”. But while judicial review may be consistent with democracy (though certainly not “implied” by it―unless Justice Huot thinks that, for example, Australia and New Zealand, both of which lack strong-form rights-based judicial review, are not democratic countries, and that Canada was not one until 1982), it simply does not follow that democracy justifies whatever a court engaged in judicial review might do. As for the common law, whatever its exact nature (and there is much more to be said for the declaratory theory than Justice Huot is aware of), it provides no authority for judges to re-write legislation, as opposed to developing judicially-articulated legal rules. Besides, Justice Huot’s re-writing of section 745.51 has nothing to do with accommodating “new views and practices”; it simply imposes a view that Parliament considered and rejected.

Now, there is a debate to be had about the appropriate judicial role in the face of unconstitutionally underinclusive legislation. It is at least arguable that courts can (sometimes) remedy underinclusion by making an obvious addition to the statute. But, to repeat, Justice Huot is not here dealing with an underinclusive provision. There is nothing unconstitutional, though there is arguably something unjust, about not imposing longer parole ineligibility terms on those guilty of multiple murders than single ones. Justice Huot’s job was to remedy what he, rightly or wrongly, saw as unconstitutionality―not to rectify injustice. He did what he wanted to do, not what he was appointed to do.


Beyond these specific mistakes, the overall tone of Justice Huot’s reasons deserves some comment. Justice Huot starts off with a reverse bench-slap directed at the Supreme Court and its decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 (is that a reverse bench-slap per saltum?), snidely commenting that “in these times when the abrogation of judicial delays seems to have been exalted to the rank of a cardinal virtue, it is not superfluous to recall that the very idea of ‘justice’ fits poorly with the clamour and the zeitgeist”. [7] He dishes it out to the American legal system for its reliance on life imprisonment without parole and insists that “Canada remains a country proud of its origins and attached to the preservation of its moral, social, and legal values, which differ in many ways from those of other jurisdictions”. [978] But whatever his pride in the Canadian legal system, Justice Huot doesn’t seem to think very highly of his colleagues who, unlike him, have seen it fit to impose consecutive parole ineligibility on multiple first-degree murderers. The accusation of sophistry, referred to above, is levelled at one of them. More generally, Justice Huot’s insistence that the discretionary power not to stack ineligibility periods, which section 745.51 maintains, is not enough to make it constitutional seems to result from his desire to prevent other judges from imposing sentences that he considers unjust, even though they do not.

Most remarkable, however, is Justice Huot’s attitude towards Parliament. It is not just that, as explained above, he deliberately re-writes the law he has found unconstitutional in a manner that was specifically put before, and rejected by, the legislature. More than that, he comments on what various members of Parliament said in the course of this debate, in a manner that sits uneasily, to put it mildly, with article 9 of the Bill of Rights, 1688, which provides “[t]hat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This is usually known as the foundation of the rule that what is said in Parliament cannot be made subject to criminal or civil liability, but Article 9 has broader separation of powers implications too. As the New Zealand court of Appeal put it in Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24, “courts scrupulously avoid” “consider[ing] questions of adequacy, accuracy or propriety in the proceedings of Parliament”. [124] Canadian courts, it is fair to say, have long been less scrupulous than they might be about this. Still, Justice Huot’s play-by-play commentary on Parliamentary debate, praise for “[o]pposition members [who] did their job”, [1146] denigration of a government member’s answer as being of “dubious intelligibility” [1137] and of the Parliamentary majority as a whole for its “wilful blindness” [1146] in the face of opposition warnings are quite beyond the pale.

And in addition to denigrating others, Justice Huot devotes a rather unseemly amount of energy to puffing himself up. He discusses and critiques Kant and Bentham, Beccaria and Blackstone―the latter based entirely on secondary sources―and misses no opportunity to wax eloquent. When the Crown points him to cases where his colleagues imposed consecutive ineligibility periods, he retorts that “such a mathematical reasoning can only lead us to the bounds of immoderation, or even a litany of jurisprudential precedents each as aberrant as the next in their repudiation of the most elementary rules of logic”. [640] The prospect of an offender never being able to seek parole is tantamount to “exile … in a prison environment, outside any civilized society”. [1073] But perhaps the best (if that’s the word) such passage comes, predictably, when Justice Huot discusses human dignity, and informs us that

In a foreseeable future, courts will have to confront especially sensitive questions, such as euthanasia, medical assistance in dying, genetic manipulations, and other bioethical questions. Science progresses at meteoric speed and ceaselessly presents new challenges to philosophers, legislators, and lawyers. Any analysis requiring reflection on the essence of human beings and their rights to life, liberty and security inevitably requires taking into account their dignity, lest it dehumanize them. [1100]

This is reminiscent of the notorious musings of Justice Kennedy, another human dignity devotee, on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. But Justice Huot’s reasons, which begin with a supposed Confucius quotation as an epigraph, bring to mind notorious line from a US Supreme Court’s decision―Justice Scalia’s quip about “the mystical aphorisms of the fortune cookie”.

Double Aspect’s Twelve Days of Christmas

Announcing a riotous blogging symposium for the festive season

As the holidays are upon us, co-blogger Mark Mancini and I would like to invite you to join our very special celebration. In our capacity as the self-proclaimed lords of misrule of the Canadian legal blogosphere, we will be reviving the old tradition of festive subversion by marking the twelve days of Christmas with a blogging symposium highlighting Canadian legal scholars’ least favourite Supreme Court decisions.

Borrowing a model recently suggested by Damon Root for Reason, we have asked Canadian legal thinkers for lists of five particularly bad public law decisions from the period 1967-2017 (we decided to exclude this year’s cases to avoid too much bias in (dis)favour of the ones fresh on everyone’s mind), accompanied by brief reminders of what they were about and explanations about why they deserved to make the list. We will be taking a “large and liberal” approach to what counts as public law, and have invited contributors to use their own criteria for what makes decisions bad and worse. The only limit, other than the time range, that we have asked them to respect is that the decisions they list should not have been overturned.

Speaking of contributors, we are very grateful to all those who have agreed to take part. This was a bit of a last-minute idea, and it was very kind of people to take time, on short notice, out their busy pre-holiday schedules to join the fun here. In no particular order, the guests who will partying with us are:

  • Geoff Sigalet
  • Bruce Pardy
  • Gerard Kennedy
  • Kerri Froc
  • Asher Honickman
  • Joanna Baron
  • Maxime St-Hilaire
  • Michael Plaxton
  • Dwight Newman

For most (all, in fact, except for Professor St-Hilaire) this will be a first appearance on Double Aspect, and we are delighted to welcome them here in such festive circumstances. And of course Mark and I will be taking part in the celebrations too.

Now, perhaps you’ve noticed that this only adds up to 11 participants. One person, sadly, had to pull out at the last moment. We thus have a spot to fill. If you feel up to the task of penning a contribution quickly, please get in touch! If not Mark and I will round-up the proceedings with some concluding observations on Day 12.

Can’t Take It

Can the police seize a computer (without searching it) if only one of its co-owners consents?

In R v Reeves, 2018 SCC 56, delivered last week, the Supreme Court held that section 8 of the Canadian Charter of Rights and Freedoms, which protects the right not to be subject to unreasonable search and seizure, prevents the police from seizing (even without searching) a computer located in the common area of a home with the consent of only one, but not the other of the home’s occupiers. As in a number of other search-and-seizure cases, it is Justice Karakatsanis who takes the lead in articulating a narrow view the police powers. Unlike in R v Fearon, 2014 SCC 77, [2014] SCR 621 and R v Saeed, 2016 SCC 24, [2016] 1 SCR 518 she carries a strong majority of her colleagues ― all but one, in fact, on this issue ― with her. And unlike in those two cases, I suspect that Justice Karakatsanis’ pro-privacy disposition has not served her well.

The facts of the case are somewhat quirky. Mr. Reeves had shared a home ― and a computer ― with his common-law spouse, Ms. Gravelle. So far, so ordinary. However, following a family violence incident, Mr. Reeves was barred from being at the home without Ms. Gravelle’s consent, which she eventually withdrew. Still, as a matter of property rights, both the home and the computer were still shared between Mr. Reeves and Ms. Gravelle. Ms. Gravelle also informed the authorities that she had previously found child pornography on the computer. A police officer came, and, with Ms. Gravelle’s consent, he took the computer back to the police station ― where it sat, seemingly of no interest to anyone, for four months, despite the Criminal Code requiring such seizures to be reported to a justice of the peace. Eventually, the police finally concocted a warrant application ― which the trial judge later found to be tendentious and deficient to the point of invalidating the warrant ― and searched the computer, duly finding the child pornography, leading to charges against Mr. Reeves, who argued that the evidence was obtained in violation of his Charter rights and should be excluded.

 There were two possible violations of Mr. Reeves’ rights for the Supreme Court to look into. First, the police officer’s entry into and search of the shared home; second, the seizure of the shared computer. (There was no dispute that the lengthy detention of the computer in violation of the Criminal Code and its search pursuant to a warrant that was subsequently invalidated were constitutionally problematic.) However, for the majority, Justice Karakatsanis does not pronounce on the requirements of the Charter with respect to police entry into a shared home with the consent of only one of its occupiers. She finds that the matter is best left for another time, when it will be more fully argued. Justice Moldaver, in a concurring opinion, agrees that now is not the time to dispose of the question ― and proceeds to lay out a detailed case for why the police have a common law power to enter to speak with one co-occupier of a shared home, while insisting that this argument is only tentative.

For the majority, the case turns on the question of the seizure of the computer. This, in turn, divides into two sub-issues: first, whether Mr. Reeves had a “reasonable expectation of privacy” in the machine; and second, whether Ms. Gravelle could obviate or waive his rights by consenting to the seizure anyway.

As Justice Karakatsanis explains, “[t]he reasonable expectation of privacy standard is normative, rather than descriptive” [28] ― it is not really about what the person concerned expected his or her privacy rights to be in the circumstances, but about where the balance between privacy and societal interests (in particular, in the investigation and punishment of offences) ought to be struck. In deciding this question, Justice Karakatsanis insists that “the subject matter of the seizure was the computer, and ultimately the data it contained about Reeves’ usage, including the files he accessed, saved and deleted”. [30] Even though, as the Supreme Court previously held, a separate warrant would be required to actually search the data contained in the computer, “Reeves’ informational privacy interests in the computer data were still implicated” [30] because he lost control of it, including the ability to destroy it. The data computers contain can be “highly private” [34], and thus not only the search, but also the mere seizure of “a personal computer from a home” “presumptively require[s]” “specific, prior judicial authorization”. [35] This is so even when the computer is shared and no one individual can expect absolute privacy when using it.

As for a co-occupier of a home consenting to the police seizing a shared computer, it “cannot nullify” [41] an existing reasonable expectation of privacy: “[t]he decision to share with others does not come at such a high price in a free and democratic society”. [44] Those others can report suspicions to the police, but it does not follow that the police can do anything they (the others, that is) consent to. It is not their (the others’) rights that are at stake, after all, and the fact that they too may have rights or privacy expectations over the same object or space is beside the point. As for what the police can do if a person actually brings an object in which another has a reasonable expectation of privacy to them, that “remains for another day”. [46] 

In the event, the majority, as well as Justice Moldaver, conclude that the Charter breaches in this case are serious enough to warrant excluding the evidence found Mr. Reeves’ computer. Justice Côté, in a concurring opinion, agrees with this outcome ― even though, as I am about to explain, she does not think that the seizure of the computer amounted to a Charter breach at all. (The Supreme Court, which only considers outcomes in its statistics, will triumphantly count Reeves as yet another unanimous decision ― yet as Peter McCormick recently explained here, it is a mistake to do so.)

On the key issue of the case ― the application of section 8 of the Charter to shared spaces and objects ― Justice Côté takes an approach that is the opposite of the majority’s. Unlike Justice Karakatsanis, Justice Côté directly addresses the question of whether police can enter shared spaces with the consent of a single occupier ― and answers in the affirmative, albeit with a possible qualification. Justice Côté writes that “it is not objectively reasonable for a cohabitant … to expect to be able to veto another cohabitant’s decision to allow the police to enter any areas of that home that they share equally”. [112] Such a veto would amount to a negation of “consenting cohabitant’s liberty and autonomy interests with respect to those spaces”. [112] It would also “require the police to identify, locate and obtain the consent of every person who lives in the home, or has any expectation of privacy with respect to common areas of the home”, [114] which is likely to be unduly burdensome at best, if not quite impossible. And applying this approach to shared virtual spaces or objects ― say, a text messaging chain ― would produce similarly perverse consequences. Meanwhile, the search of common areas of a shared home is unlikely to produce intrusions into a person’s deepest secrets.

Justice Côté takes a similar approach to the seizure of a shared computer. While acknowledging that searching such a computer would require prior authorization, she argues that the mere seizure consented by one of the computer’s co-users is not a violation of the other co-users’ rights ― and thus disagrees with the majority on this key point. Again, it is not reasonable to expect that a co-user will not allow the authorities to seize a shared computer, and concluding otherwise would deny the co-user’s  autonomy. The context of co-ownership and joint control influences the scope of one’s reasonable expectation of privacy. Furthermore, Justice Côté stresses the fact that only the seizure of the physical object, not the information it contains, is at issue, and reproaches the majority for conflating the two. She also points out that the majority’s approach may well amount to recognizing an expectation of privacy not just in favour of a co-owner of a computer, but also of, say, a guest who used it at some point in the past. Justice Côté adds that of course a co-owner should be able to take a shared computer to the police ― and letting the police take it is no different.

As noted at the outset, I am inclined to think that Justice Karakatsanis has indeed gone too far in protecting privacy here. Justice Côté is right that the majority conflate interests in maintaining control of a physical object and those in ensuring the privacy of the data that this object contains. And it is true that, by effectively granting a veto to each co-user (and perhaps even a past user ― perhaps the majority would distinguish that case, but it is indeed unclear how, and it’s unfortunate that Justice Karakatsanis doesn’t address the point), the majority compromise the autonomy ― and interfere with legitimate interests ― of other co-users. It would, as Justice Côté says, be odd if such people couldn’t take things of which they have legitimate control to the police ― and no less odd if they could not invite the police to take such things.

At the same time, a couple of points bother me about Justice Côté’s reasons. First, she might be too sanguine about the prospect of police not gaining access to particularly private information in common areas of shared dwellings. This may indeed be a reasonable assumption if the people living together are what in North America are misleadingly called) room-mates, and elsewhere, more accurately, flat-mates, who each have a private room. But if they are spouses, or otherwise family members, the distinction between common and private spaces within the shared home may not be drawn with any clarity. Perhaps this does not matter after all, but Justice Côté would have done well to address this issue.

I also am somewhat puzzled by Justice Côté’s references to the odd circumstance that Mr. Reeves had lost access to the theoretically-shared home and computer that were the objects of the police’s interest here. It’s not quite clear how much this fact matters to Justice Côté’s conclusions. I think it’s not particularly significant in her reasoning regarding police entry into a shared dwelling, but on the seizure issue, Justice Côté explicitly says that it is “relevant” that Mr. Reeves “lacked control [of the computer] as a result of his own actions”. [130] Yet not only was this “result” an indirect and unintended, albeit foreseeable one, but, more importantly, one is left in some doubt about how Justice Côté thinks more ordinary cases, where this “relevant” factor will not be present, ought to be decided.

Ultimately, Reeves might not be a very important case. The one issue it actually decides, whether police can seize shared computers with the consent of one but not all of their users, may not recur all that often, insofar as people increasingly use personal laptops, tablets, or smartphones. I don’t actually know if they do, but I suspect that they might. Perhaps its chief interest is in the trends that it confirms: Justice Karakatsanis’ role as the Supreme Court’s leading pro-privacy voice, and Justice Côté’s as its leading independent thinker. On the whole, the Court needs both, even when they disagree, and even in cases where neither is quite right. 

Ceci est-il une conversation?

The Supreme Court holds we can expect our text messages to remain private, even on other people’s phones

Last week, the Supreme Court released its eagerly-awaited judgment in R v Marakah, 2017 SCC 59, holding that a person had standing to challenge the admissibility of text messages to which he was a party but which the police had seized from another’s cell phone. The Chief Justice wrote the majority opinion, in which Justices Abella, Karakatsanis, and Gascon concurred. Justice Rowe wrote a brief concurrence, raising some concerns about the future implications of the majority opinion, with which he nevertheless agreed. Justice Moldaver, with the agreement of Justice Côté, wrote a fierce, strongly-worded dissent.

Section 8 of the Canadian Charter of Rights and Freedoms provides that “[e]veryone has the right to be secure against unreasonable search or seizure”.  This right applies when a person has an objectively reasonable “expectation of privacy” in the thing or information that is the object of the search or seizure. There is no question that Mr Marakah wanted and expected his exchange of text messages with an accomplice in a weapons-trafficking venture to remain private. But was he entitled to expect that the police would not read these messages on that accomplice’s phone?

The majority and Justice Rowe think that he was. As the Chief Justice put it, the

interconnected web of devices and servers creates an electronic world of digital communication that, in the 21st century, is every bit as real as physical space. The millions of us who text friends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors. [28]

The information exchanged in these nooks and crannies of cyberspace is, potentially, highly private, and indeed “[i]ndividuals may even have an acute privacy interest in the fact of their electronic communications”. [33] Crucially,

this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions — and not just the contents of a particular cell phone at a particular point in time — to remain private. [37]

The fact that we might not control all the devices through which this information is accessible is not especially important. It is the information exchanged, the conversation, that is the subject of the expectation of privacy, not whatever device might allow one it view it. And even the fact the person with whom one is texting could disclose the fact or the content of the conversation does not allow the state to read it.

Justice Moldaver disagrees. For him, control is a key factor in the analysis. Justice Moldaver writes that “the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search”, and “[w]here an individual lacks any measure of control, this serves as a compelling indicator that an expectation of personal privacy is unreasonable”. [98] Justice Moldaver gives a number of examples: DNA in one’s body is private, but DNA traces left on, say, the body of a victim of a crime are not; thoughts recorded in a private diary are private, but not those publicly shared online. [116] While control does not require ownership or exclusivity of access, a lack of control means that information is not in a meaningful sense private.

When it comes to conversations, including conversations conducted by text messaging, Justice Moldaver is of the view that one loses control over what one has said once one has said it. What one’s interlocutor’s phone records is “an independent record”, [128] similar to the notes one might make after a spoken conversation, and within the interlocutor’s exclusive control. Evesdropping on an ongoing conversation, or intercepting text messages as they are being sent, violates a reasonable expectation of privacy. By contrast, just as each party to a conservation is free to share a record or recollection of it, and his or her interlocutor can (subject to any applicable privacy legislation) have no reasonable expectation of privacy in that record, so it is also with a “record” of a conversation conducted via text messaging.

Here, as I see it, is one important point of disagreement between the majority and the dissent. Both are ostensibly agreed that what Mr. Marakah had, or lacked, a reasonable expectation of privacy — or, in other words, “the subject matter of the search was Mr. Marakah’s ‘electronic conversation’ with” his accomplice. [17; 111] But it seems to me that while the majority does indeed approach the case as one about the privacy of a conversation, the dissent sees it as being not about a conversation as such, but rather about a record of a conversation. To repeat, Justice Moldaver accepts that “an electronic conversation” would be private; it could not be intercepted without due authorization. But the messages stored in the cell phone of one of the parties to the conversation are not the same thing. They are like the notes one of the interlocutors took. (Hence the title of this, in reference to René Magritte’s notorious The Treachery of Images, a.k.a. Ceci n’est pas une pipe.) As Justice Moldaver suggests, we can expect not to be eavesdropped on, when having a private conversation, but not necessarily that the contents of that conversation will never be revealed to third parties. So the majority decision makes sense in light of how it understood the issue, and the dissent makes sense in light of its author’s different understanding of the case.

But which of them is correct? I personally find this a very difficult question. A number of legal issues arising out of new technologies, broadly speaking, have to do with the erasure of the once-clear line between the spoken and the written word. The former was (usually) spontaneous and fleeting; the latter (relatively) deliberate and permanent. But electronic communications combine spontaneity and permanence in a way to which many of us are still only getting used and with which the legal system, unsurprisingly, struggles. One of my very early posts, for instance, was about a case that concerned an attempt by a university to punish students who ranted about their professor on Facebook. Student rants about a professor are nothing new, but the fact that they were made online rather than over beers left a record for the authorities to look into and to try (unsuccessfully in the event) suppressing. In a different way, the disagreement about the way to characterize text messaging “conversations” — often created in a spontaneous way, as if the parties were together in the same room, but a permanent record for the police to look at later — exemplifies the same set of difficulties. (This might come out most clearly in Justice Rowe’s brief concurrence.) On balance, though, I am inclined to think that Justice Moldaver’s view makes more sense. The idea of a never-finished conversation, to which one is always an ongoing party, and in which one is permanently entitled to expected privacy, which seems implicit in the majority’s approach, doesn’t quite make sense to me. This is a very tentative thought, however, and a minority view, I gather.

Beyond the characterization of “electronic conversations”, the Chief Justice and Justice Moldaver also disagree about the policy implications of the Supreme Court’s decision. In particular, Justice Moldaver worries that police will not be able to access, without a warrant, “electronic conversations” that are voluntarily tendered to them by one of the parties, even when the conversations are themselves crimes, and the parties disclosing them to the police are victims. A person may, for example, receive a threatening text message, and want to show it to police officers, but it is not clear that the police will be entitled to look without judicial authorization. At best, this will complicate the work of the police; at worst, serious crimes will go unpunished. The Chief Justice responds that these difficulties can be dealt with if and when they arise. For his part, Justice Rowe is not so sure, and I take that it is because he ” share[s] the concerns raised by Justice Moldaver as to the consequences of this decision” [89] that he goes to the trouble of writing separately.

A lot, then, remains to be decided. Privacy issues have been consistently difficult for the Supreme Court, or at any rate more consistently divisive than most others. I find these issues difficult too, so I have sympathy for judges on both sides. That the majority wants to be protective of privacy in a way the majority in R v Fearon, 2014 SCC 77, [2014] SCR 621 (which I criticized here) was not is heartening. (Some people on Twitter were wondering how many of the judges had got smartphones in the meantime. A cynical question, perhaps, but I’m not well placed to critcize those who are cynical about judges, am I?) The question now is whether the pendulum has swung too far in the direction of privacy. It might have, but we will have to wait to find out.

A Pile of Problems

A critique of Steven Penney’s take on the Supreme Court’s distinction between criminal and administrative penalties

Steven Penney has recently posted to SSRN an interesting article, published last year in the Supreme Court Law Review, criticizing the Supreme Court of Canada’s jurisprudence distinguishing the imposition of “administrative” and “criminal” penalties. People (and corporations) who risk the latter kind of penalties ― “true penal consequences” as the Court calls them ― benefit from a variety of procedural protections which section 11 of the Canadian Charter of Rights and Freedoms grants to “[a]ny person charged with an offence”. Those facing only “administrative” penalties ― which can include suspensions of licenses (to drive or to practice a profession) and fines, even fines ranging in the hundreds of thousands if not millions of dollars ― are not protected by the Charter.

Prof. Penney traces the intellectual roots of this distinction to the Canadian rejection of the “Lochner era” in American constitutional jurisprudence, which is generally thought to have involved judicial subversion of valuable economic regulation intended to protect society’s less powerful members.  Prof. Penney shares the concern that motivated this rejection, but argues that it has been taken too far. The “shadow of Lochner“, as his article’s title has it, has dimmed the guiding lights of the Charter, even as

[l]egislatures have increasingly relied on administrative and civil enforcement regimes to address forms of wrongdoing previously left to the criminal law. In many instances, the sanctions accompanying these regimes are harsh, the targets are ordinary people, and the rules protecting adjudicative fairness are weak. (309)

Prof. Penney argues that section 11 of the Charter should be interpreted more broadly, to provide procedural protections to persons involved in administrative as well as criminal proceedings. The government’s ability to justify restrictions to or departures from these protections under section 1 should be enough to prevent them from standing in the way of truly important economic regulation ― but the necessity of these restrictions or departures would have to be justified.

This is an intriguing argument. I have written here about Thibault c. Da Costa, 2014 QCCA 2347, a case in which the distinction between administrative and criminal penalties was used to uphold the imposition, on a financial advisor who had swindled some of his clients, of fines that were higher than those authorized by the applicable legislation as it stood at the time of the acts. In the criminal context, paragraph 11(i) of the Charter, which entitles persons charged with an offence “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”, prohibits this. But the Québec Court of Appeal took the view that the proceedings here were not really criminal, because the fines imposed were not “true penal consequences”, and so their retrospective increase was upheld. I wrote that the decision, although legally correct, was disturbing. Prof. Penney discusses two decisions of the Supreme Court that also apply this distinction to disturbing effect (as he, persuasively in my view, argues):  Guindon v Canada, 2015 SCC 41, [2015] 3 SCR 3 and Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250.

At the same time, however, Prof. Penney’s article suffers from a some flaws that are, sadly, characteristic of Canadian constitutional thought. One issue I have with Prof. Penney’s argument is that it mostly does not question the conventional wisdom on the “Lochner era” in which it finds the roots of the problem it tries to push back against. According to this conventional wisdom, the U.S. Supreme Court’s decision in Lochner v New York, 198 US 45 (1905), held up, in prof. Penney’s words, “a rigid and formalist interpretation of the Bill of Rights to limit state efforts to enact and enforce progressive economic legislation”. (308) This is questionable; indeed, recent scholarship argues that it is simply wrong. David Bernstein, whose book prof. Penney cites but does not engage with, has shown that, far from being intended to protect the vulnerable and the disadvantaged, the legislation invalidated in Lochner served to protect (relatively) big ― and unionized ― established businesses against smaller, family-owned competitors. Many other laws invalidated in the “Lochner era” ― which were never as numerous as subsequent criticism made them out to be ― were similarly objectionable. Meanwhile, this reviled jurisprudential era has served as the foundation for the subsequent expansion in the enforcement of constitutional rights in the non-economic realm.

This history matters. Rectifying the record is useful for its own sake of course. Prof. Penney says that “[t]he story of Lochner is well known” (310) ― and, in the next sentence, misstates the year in which it was decided; an accident, no doubt, but an ironic one. Prof. Penney quotes a passage from Justice Cory’s reasons in R v Wholesale Travel Group Inc, [1991] 3 SCR 154 describing the “so-called ‘Lochner era'” as the period of time when “courts struck down important components of the program of regulatory legislation known as ‘the New Deal'”. But of course the “Lochner era” began well before Franklin D Roosevelt’s New Deal, and most of the laws struck down during this period had nothing to do with it. In short, “the story of Lochner” is rather less well known than one might be tempted to suppose; what people think they know about it may be ideological myth more than reality. More importantly, however, recovering Lochner‘s philosophy ― an opposition not to any and all economic regulation, but to the sort of regulation that privileges some groups in society above others ― might also make us rightly more suspicious than we tend to be of the  regulatory schemes that the courts end up protecting by invoking the administrative-criminal distinction. In my post on Thibault I suggested that courts should be wary of “the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role” when they ask themselves whether the penalties at issue are administrative or penal in nature. Remembering Lochner‘s lesson ― that economic regulation is not always as benign and protective as it seems ― might help here.

My other, and more important, objection to prof. Penney’s argument concerns his approach to constitutional interpretation. He “claim[s] … that the Supreme Court’s construal of ‘charged with an offence'” in section 11 of the Charter as excluding administrative proceedings  “is too restrictive”. (323) It is too restrictive, prof. Penney argues, because of the bad consequences it produces ― in the sense that individual rights to “adjudicative fairness in contesting substantial state-imposed penalties” (324) are under-protected. As I suggest above, I think that prof. Penney is right to decry the under-protection of these rights. But it is not enough to say that, because interpreting a constitutional provision in a certain way produces unpleasant consequences, a different interpretation can and ought to be adopted.

The jurisprudence that prof. Penney criticizes arguably illustrates the perils of this approach. In prof. Penney’s telling, the Supreme Court is concerned about the costs of enforcing the Charter‘s procedural protections for the state’s ability to impose economic regulations, more than it is about the consequences of not enforcing these protections when “true penal consequences” such as imprisonment are not at stake. A consequentialist approach to constitutional interpretation can go either way; there is no guarantee that it will always be right-protecting. Consequentialism, in turn, is one possible way of implementing the “living tree” interpretive methodology that the Supreme Court and Canadian academia loudly insist is the only appropriate one. It’s not the only way ― one might be a living-treeist without being a consequentialist. But saying “living tree” is not enough to decide cases. Once one accepts that constitutional meaning can change, one has to figure out what it should change to, and this is where consequentialism comes in. If one wants to foreclose, or at least to limit, its influence in constitutional interpretation, one should, I suspect, abandon living-treeism, at least in the radically unspecified form in which it is practised in Canada.

Now, it is not clear that doing so will lead to results that prof. Penney or I would find pleasant in this particular case. The main alternatives to living-tree constitutional interpretation are the different versions of originalism. (For a primer, see Benjamin Oliphant’s and my paper recently published in the Queen’s Law Journal.) An originalist approach to section 11 of the Charter would consist in asking whether (depending on the version of originalism one subscribes to)  “charged with an offence” would have been understood in 1982 as applying to administrative proceedings or was intended to apply to them by the Charter‘s authors. And I don’t know the answer to these questions. What I do know is that, insofar as these questions do have an ascertainable answer (they might not; perhaps the phrase “charged with an offence” is irreducibly vague, forcing an originalist interpreter into the “construction zone” that is, on some views, not very different from living tree interpretation), this answer does not turn on competing, and potentially variable, cost-benefit analyses, which will inevitably be influenced by personal preferences, of judges or scholars. Originalism is not necessarily more rights-protective than living-treeism ― though as prof. Penney shows, living-treeism isn’t always very rights-protective either. But originalism does hold out a promise of a constitutional law that is actually law-like, in that it is independent of the individuals who apply it. In the long run, this is not only valuable in itself, but arguably also more likely to protect individual rights in situations where doing so is likely to be seen as undermining important social objectives ― which after all is the whole point of constitutional rights protection.

Prof. Penney’s article is valuable because it attracts our attention to a number of serious problems affecting our constitutional law. On the one hand, there is problem of insufficient constraints on the imposition of “administrative” penalties, which the article decries. On the other, there are the twin problems of reliance on a blinkered version of history and on open-ended “living tree” constitutional interpretation that opens the door to consequentialist reasoning unconstrained by anything other than personal preferences, which the article exemplifies. Proponents of prof. Penney’s interpretive approach might say that my argument is contradictory, since it suggests that the constitution might not give us the resources to address the problem prof. Penney identifies. But if that is so, the solution is not to surreptitiously re-write the constitution under the guise of an interpretation that will only be adhered to by those who share the interpreter’s beliefs, but to amend it in a way that will be binding on all future interpreters, whatever their personal views.