Antigone in Hamilton

The confrontation between New Zealand legal system and a family trying to bury a dead husband/father is eerily like Sophocles’ tragedy

It’s the story of wanting to mourn and bury a family member, and being prevented from doing so by law, perhaps not an unreasonable law. It’s the story of breaking the law to do what one thinks is right, and of not only being punished for it but being scolded by a man self-righteously posing as the voice of his people. It’s an old story. It’s one of the oldest stories. It’s a story that’s 2500 years old.

No, wait. It’s a new story. It just happened in Hamilton. (The New Zealand Hamilton, that is.) Stuff reports that a mother and her children “had flown over from Brisbane after the children’s father suffered a stroke and died on July 20. … She said the children had watched their father take his last breaths on a video call”. On arrival in New Zealand, they were put in quarantine. They applied for a compassionate exemption to attend the funeral, but their application was denied on the basis that “their ‘circumstances were not exceptional'”. So they escaped. The mother and three children were quickly captured, but a 17-year-old boy made it from Hamilton to Auckland, and “was able to spend between three and four hours with his father’s body before he negotiated with police and was detained”. And hence the grandstanding in Hamilton Youth Court: 

All appeared in front of Judge Noel Cocurullo, who said that New Zealanders were “sick and tired” of quarantine breaches. “The New Zealand public would be gutted at your behaviour,” he told the family. “You know the rules required of you coming into the country. It’s most important you comply with the rules.”

The mother, though, is not impressed with this. She “told Stuff ‘[she] was doing what any other mother would have done for their children'”.

I’m not sure about “any”, but as Sophocles knew, she certainly has a point. He tells of Creon, the king of Thebes, prohibiting anyone on pain of death from giving the funeral rites to Polyneikes, who tried to bring an invading foreign army to the city. Polyneikes’ sister Antigone defied Creon’s edict and tried to bury her brother.

The resulting conversions, although fortunately not the ultimate outcome (spoiler alert: it’s a tragedy, so everybody dies) foreshadow the recent events quite uncannily. Creon, like Justice Cocurullo appeals to the public authority of the laws, and Antigone, like the mother here, trumps it with that of natural, pre-political obligation:

Creon: Knew’st thou the edicts which forbade these things?

Antigone: I knew them. Could I fail? Full clear were they.

Creon: And thou did’st dare to disobey these laws?

Antigone: Yes, for it was not Zeus who gave them forth,⁠
Nor Justice, dwelling with the Gods below,
Who traced these laws for all the sons of men;
Nor did I deem thy edicts strong enough,
That thou, a mortal man, should’st over-pass
The unwritten laws of God that know not change.
They are not of to-day nor yesterday,
But live for ever, nor can man assign
When first they sprang to being. Not through fear
Of any man’s resolve was I prepared
Before the Gods to bear the penalty
Of sinning against these.

And Creon, like Justice Cocurullo, insists that the people are with him, not with the one who defies him. She, though, begs to differ:

Creon: Of all the race of Cadmos thou alone
Look’st thus upon the deed.

Antigone: ⁠They see it too
As I do, but their tongue is tied for thee.

Creon: Art not ashamed against their thoughts to think?⁠

Antig: There is nought base in honouring our own blood.

And, is it turns out, it is probably Antigone who is right about the state of public opinion. Creon’s son and Antigone’s fiancé, Haemon, challenges his father:

Haemon: ‘Tis my lot to watch
What each man says or does, or blames in thee,
For dread thy face to one of low estate,⁠
Who speaks what thou wilt not rejoice to hear.
But I can hear the things in darkness said,
Ηοw the whole city wails this maiden’s fate,

I won’t pretend to know where the state of public opinion in New Zealand lies on this story. And, wherever it lies, this should not matter for Justice Cocurullo’s verdict. We have the advantage of separation of powers over the Thebans, and this means that our judges must apply the law as it is ― and it is, then, for the Crown and its responsible advisors to exercise the prerogative of mercy in the appropriate cases. I won’t even pretend to say whether this is such a case.

But what I think I can say is that Justice Cocurullo, and other judges ― not just in New Zealand ― should not be so quick to saddle their moral high horse. Another, more recent work of literature comes to mind ― Patrick O’Brian’s Desolation Island (one of the novels in the Master and Commander series), of all things, where Dr Maturin, I believe, has this to say:

judges … not only are … subjected to the evil influence of authority but also to that of righteous indignation, which is even more deleterious. Those who judge and sentence criminals address them with an unbridled, vindictive righteousness that would be excessive in an archangel and that is indecent to the highest degree in one sinner speaking to another, and he defenceless. Righteous indignation every day, and publicly applauded!

And if there is one thing worse still than righteous indignation on own’s behalf, it is that on behalf of others ― who, as often as not, will not actually share in it. That is as true now as it was 2500 years ago.

Rafilovich: A Textualist (or Quasi-Textualist) Turn?

Since Telus v Wellman, the Supreme Court of Canada has moved towards a sort of “textually constrained” purposivism in statutory interpretation cases. To my mind, textually constrained purposivism involves two parts: (1) a focus on the text over abstract purposes in determining the meaning of text and (2) if there are conflicting purposes at the same level of abstraction, choosing the purpose most local to particular provisions, rather than abstract purposes of statutes. Telus v Wellman involved (1). The Supreme Court’s recent opinion, R v Rafilovich, addressed (2). It teaches that courts should not look to abstract, overall purposes of a statute in place of more particular, local purposes. The latter purposes actually shed light on the text at issue, rather than using abstract (perhaps unenacted) purposes to divine text.

In this comment, I briefly address the setup of Rafilovich. Then I address why Rafilovich demonstrates a sort of textually constrained purposivism, threading together Telus v Wellman and Rafilovich.


Rafilovich involved the proceeds of crime provisions of the Criminal Code and the provisions in the Criminal Code for the return of seized property for the purposes of legal fees. The issue was whether property that was returned to the accused to pay for “reasonable legal fees” could later be subject to a fine by the Crown, if the property was not available for forfeiture (because it was already spent). Martin J wrote the opinion for the majority, in which she outlined the process by which these two sets of provisions worked (para 22 et seq):

  • The accused is charged with a “designated offence,” under s.462.3(1) of the Criminal Code.
  • Property is seized under Criminal Code provisions that allow the state to take property from an accused on the basis of reasonable and probable grounds that the property may eventually be proven to be proceeds of crime.
  • The accused makes an application for the return of the seized property for the purpose of paying for reasonable legal fees (s.462.34(4) to (6) of the Criminal Code). Seized property can only be returned “if the judge is satisfied that the applicant has no other assets or means available” to pay for legal expenses (s.462.34(4)(c)(ii)).
  • The onus shifts to the Crown to prove that certain property meets the statutory definition of proceeds of crime. Only property determined to be “proceeds of crime” is subject to forfeiture or a fine in lieu of forfeiture.
  • If the property which=proceeds of crime is no longer available for forfeiture, the judge may order a fine instead of forfeiture (s.462.37(3) and (4)).

Martin J then outlined the purposes of the proceeds of crime provisions, including the “return for the purposes of legal fees” provisions. The overall purpose of the proceeds of crime section of the Criminal Code is to ensure that “ ‘crime does not pay’ and to deter offenders by depriving them of their ill-gotten gains” (at para 2). But this overall purpose did not run through, at full force, all provisions of the section. Martin J outlined purposes particular to the legal fees provisions, including (1) ensuring access to counsel and (2) upholding the presumption of innocence (at para 53). To Martin J, these particular provisions must be “balanced with the primary objective of the proceeds of crime regime” (ibid). Permitting the Crown to take a fine amounting to the cost of legal fees spent during the course of the proceedings would run counter to these two objectives.

Moldaver J, in dissent, took a different view of the statute. He would have prioritized the “crime does not pay” overall purpose of the statute: “…I am of the view that the statutory regime’s primary objective of ensuring that crime does not pay need not and should not be sacrificed on the altar of the ‘secondary purposes’ relied on by my colleague” (at para 92). Moldaver J went to pains to note that all of the primary and secondary purposes of the statute could be achieved by prioritizing the primary purpose (ibid).


In my view, Martin J’s majority opinion gives effect to explicit text in the Criminal Code that sets out “safety valve” provisions from the general proceeds of crime provisions governing reasonable legal expenses. These provisions, setting out different text, must emanate from a different purpose. In other words, these provisions on a plain reading have little to do with ensuring crime does not pay. For that reason, the provisions must reflect a different purpose than the overall one. Giving effect to Parliamentary meaning in language means recognizing this different purpose.

The starting point for this argument is a description of the general problems that plague Canadian statutory interpretation. As I wrote in my piece “Statutory Interpretation from the Stratasphere,” there are two basic problems in statutory interpretation: vertical abstraction and horizontal frequency. Vertical abstraction is the problem of, in one particular statutory provision, choosing the appropriate level of abstraction for the purpose which governs in relation to particular text. Horizontal frequency involves choosing the purpose most local to the dispute/legislative provision at hand among purposes at the same level of abstraction. Telus v Wellman involved the former issue, but Rafilovich involves the latter: do we choose the “primary” purpose of “crime does not pay” to resolve the dispute, or the more local purposes of access to justice and the presumption of innocence?

The Federal Court of Appeal has already dealt with this problem in the context of the Williams case, in which Justice Stratas sensibly isolated the horizontal frequency issue. As I wrote in “Statutory Interpretation from the Stratasphere”:

Williams shows a way to properly select the purpose. In that case, Justice Stratas identified the different purposes bearing on the interpretive difficulty; under s.3, the Act was aimed at “keeping track of cross-border flows” of currency, which fulfills larger public safety concerns. However, under s.13, the Act was directed at concerns of privacy. Those concerns were manifested in specific statutory text aimed at this “very limited” function.

There is a duelling tension between these statutory provisions, but Justice Stratas resolved the issue by focusing on the statutory purpose which bore most heavily on discovering the meaning of the statute. It would do no good to discovering the meaning of the provision at issue in Williams to frame the purpose at the level of public safety and end the matter. Instead, Justice Stratas sensibly isolated the purpose bearing on the problem by referencing specific statutory text supporting that purpose.

Applying this sort of thinking to Rafilovich, Justice Martin is clearly in the right. In this case, the most local purposes to the dispute at hand were the purposes speaking of access to justice and the presumption of innocence, assuming these purposes were identified correctly. Why must these purposes be prioritized over the general purpose? Because of the principle of democracy. The use of different language to express Parliament’s law in the legal fees provisions should lead to different interpretive outcomes. By this, I mean that ensuring crimes does not pay may be an overall purpose of the proceeds of crime provision, but Parliament clearly used different language and a different approach in the legal fees provisions. This different approach must, consequently, reflect different legislative purposes, as the legislative history in the case outlines (see para 39 et seq—though I cringe at the reliance on legislative history writ large). The court must give “purpose and meaning to each provision” (at para 20).

Moreover, ensuring crime does not pay is an odd purposive fit for the language under interpretation here. The availability of a fine for money spent on legal fees hinges on the fact that the money spent on legal fees is no longer available—it was spent. One could hardly say that an accused is benefitting from crime because of the mere fact that he paid for his legal defense with fees that, at the time of their spending, have not been shown to be proceeds of crime definitively. Furthermore, as Martin J notes, an accused may simply forego counsel, fearing a fine—which would undermine the so-called “secondary purposes” of the legal fees provisions. Instead, it is more natural to read the legal fees provisions as meaning something different and reflecting different purposes of access to justice and the presumption of innocence. These purposes, as in Williams, bear most heavily on discovering the meaning of the particular legislative provisions under interpretation—in other words, they are the most helpful to solving the interpretive difficulty. “Crime does not pay” does not, practically, get us any closer to solving the interpretive difficulty.

True, it would be right to note that money returned for legal fees could later be determined to be proceeds of crime; from this perspective, the accused “benefitted” from crime because he used tainted money to pay for his legal fees. But there are two responses to this position. First, at the time the accused spends the money on legal fees, one does not know whether the fees constituted “proceeds of crime”; “the accused may never be convicted, or the property may never be proven to be proceeds of crime. Thus, when accused persons spend returned funds on reasonable legal fees, they are spending their own money on their legal defence” (at para 45). Secondly, when balanced with the local purposes—access to justice and the presumption of innocence—it is more likely that Parliament intended a carve-out from the general “crime does not pay” principle in the distinct circumstances of legal fees. This is because of the centrality of counsel in our constitutional system. It is not absurd to suggest that when Parliament enacted these provisions, it had the backdrop of the important role of counsel in mind, as a limited carveout from the general crime does not pay principle (see the legislative history at paras 40-41). With that role in mind, coupled with the important role of the presumption of innocence, it is not a far leap to suggest that Parliament wanted different purposes to drive these particular sections of the Criminal Code.

Overall, and as I mentioned above, textually-constrained purposivism has two parts. Telus v Wellman focused on the importance of text vis-à-vis purpose. Rafilovich solves the other problem associated with purposivism: how do we decide which purpose governs? Martin J’s opinion selects the most local purposes to the interpretive dispute, explicitly giving meaning to Parliament’s language in the legal fees provisions. This, to my mind, is a positive step.

R v King: Creative Remedies

On September 19, 2019, certain new amendments to the Criminal Code took effect. Those amendments, among other things, repealed s. 634 of the Criminal Code, which enshrined the statutory right to peremptory challenges of potential jurors (as opposed to challenges for cause). The bill in question replaced s.634 with a new provision that allowed expanded powers for a judge to stand aside certain jurors. In R v King, Justice Goodman considered the constitutionality of this repeal-and-replace.  The applicant had made arguments that “the repeal of s.634 of the Criminal Code…violates his right to a fair trial pursuant to ss.7, 11(d), and 11(f) of the [Charter]” [2]. The judge ultimately accepted these arguments, concluding that the repeal provision was unconstitutional. When it came to s.1, Justice Goodman did not conduct a full Oakes test analysis, given the Crown’s concession that “it would be a difficult task to sustain any argument under s.1” in the circumstances of a s.11 or s.7 breach. [257-258].

I am not a criminal law expert, and so the nuances of peremptory challenges are beyond me. And while the constitutional analysis in the case is interesting, other, brighter minds will analyze it. For me, the really interesting part of this case is the remedy. That is what I will focus on in this post.

After concluding that the repeal was unconstitutional, Justice Goodman had to craft an appropriate remedy. He was faced with arguments on the issue. At first, Justice Goodman recognized that under a “plain reading” of s.52 of the Constitution Act, 1982, “[i]t is recognized that a declaration of invalidity will create a legislative vacuum or frustrate Parliament’s clear legislative intent” [262]. He went on to note that, according to his take on principles of remedies law, “courts should not drastically alter the nature of the statutory scheme through  a s.52(1) remedy” [263]. But in the face of this potential “vacuum,” the Crown submitted that “resort must be made to my inherent jurisdiction at common law to control the challenge process,” without the assistance of the former s.634 of the Criminal Code [265]. In other words, with no statutory guidance, the challenge process would devolve to the inherent jurisdiction of the courts, “to ensure that jury selection takes place in a fair and efficient manner such that an impartial jury is selected” [265].

But Goodman J did not accept this proposition, instead deciding that he could issue a s.52 declaration of invalidity that restored the law to the s.634 state:

However, if I accede to the Crown’s submissions, there is a real risk that individuals will be subjected to a jury selection that is unconstitutional. That is inconsistent with Charter values and the principles established in Schachter.

Accordingly, the declaration shall have immediate effect. Pursuant to s.52(1) of the Constitution Act, 1982, the repeal of s.634 is of no force and effect.

It is trite to state that there is no right without a corresponding remedy. The remedy here is to apply or adapt the previous s.634 of the Criminal Code as it existed prior to the enactment of s.269 of the Act. While not “reading-in” per se, (as the former section remains unaltered), the ultimate effect is the same.

In my view, there are a few problems with this sort of reasoning.

First, it is inconsistent with the way the Supreme Court has held declarations of invalidity to work (characterizing what the judge did here as a severance-sort of remedy). Striking down a legislative provision does not leave any discretion in a reviewing court when it comes to the particular time in which a declaration takes effect (with the notable exception of a suspended declaration of invalidity). Starting from first principles, a s.52 remedy works in two temporal directions. Prospectively, a declaration of invalidity “declares that, henceforth, the unconstitutional law cannot be enforced,” but it also “operate[s] retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law” (Hislop, at para 82). Put differently, “[w]hen the Court is declaring the law as it has existed” then a retroactive remedy of this sort is appropriate (Hislop, at para 93). The remedy therefore operates as if the law never existed in the first place: “Thus, in principle, such a provision is invalid from the moment it is enacted…” (Martin, at para 28). More generally, s.52 “confers no discretion on judges” (see Ferguson, at para 35 in the context of constitutional exemptions).

Nothing in these precedents permit a judge to apply a retroactive declaration of invalidity (whether of a whole statute or by severing an offending part, as in this case) at the time frame he or she chooses. This is because when severance occurs, it reaches back to the time the statute was enacted, but it does no more. Thus, it is impossible to conclude that s.634 could somehow reappear, with the declaration taking effect before the replacement of s.634, because a declaration of invalidity does not bring back into force previous versions of a law–even when the law is a repeal. It merely strikes the replacement provision; in this case, new provisions governing the powers of the judge. For this reason, it is impossible to say that issuing a declaration of invalidity can be timed to bring s.634 back into force, because s.634 no longer exists under the repeal-and-replacement law. A different system exists. The judge should have dealt with the logical conclusion of striking down: under the right approach, there would be no peremptory challenge provision in the Criminal Code, and it would indeed be up to individual judges to craft the jury selection process to be consistent with constitutional rights until Parliament stepped in.

This leads to another problem with this decision: it is hard to see what the Court is actually doing, because much of its remedial analysis is unclear. This is true in a few ways. First, the Court failed to conduct the analysis that the Supreme Court  set out in its seminal Schachter case. For example, in Schachter, at 717 the Court was explicit about the approach judges should take in fashioning remedies under s.52:

Once s.52 is engaged, three questions must be answered. First, what is the extent of the inconsistency? Second, can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of the legislation inextricably linked to it? Third, should the declaration of invalidity be temporary suspended?

Here, the judge did not define the extent of the inconsistency, which is usually set by looking to the branch of the Oakes test that the law failed (Schachter, 718). But as noted above, the judge did not conduct a s.1 analysis here. This meant that the extent of the inconsistency with s.7 and s.11 was left undefined, and the remedy chosen did not necessarily fit the violation.

Further, it is unclear what the remedy the judge actually imposed. He seemed to analogize it to a form of “reading-in.” But he paid no mind to the law governing reading-in, and thus imposed a remedy that was profoundly violative of Parliament’s purpose in the repeal provision. For example, in the companion case of R v Muse, the Court cited the Minister of Justice’s take on the purpose of the legislation:

Reforms in this area are long overdue. Peremptory challenges give the accused and the crown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition…[t]o bring more fairness and transparency to the process, the legislation would also empower a judge to decide whether to exclude jurors challenged for cause by either the defence or prosecution. The legislation will strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury…I am confident that the reforms will make the jury selection process, more transparent, promote fairness and impartiality, improve the overall efficiency of our jury trials, and foster public confidence in the criminal justice system.”

Taken this way, it was a clear goal of the legislative provision(s) in issue to remove peremptory challenges and strengthen the existing powers of the judge to control the jury selection process. But the judge in King gave no mind to this legislative purpose. He basically read the old s.634 into the legislation. But reading-in, according to Schachter, can only make sense where it would further a legislative objective or constitute a lesser interference with that objective in a way that does not “constitute an unacceptance intrusion into the legislative domain” (Schachter, at 718). Here, the judge read-in s.634 which was clearly designed to be repealed by the new legislation, and the judge stepped into the shoes of Parliament to craft what he thought was an appropriate legislative scheme (the old s.634). This is not respectful of the purpose of the repeal-and-replace.

One might respond that, with analogy to the law on suspended remedies, the judge actually decided that merely striking the provisions would create a “legislative vacuum.” That vacuum was solved by reading in s.634. And the court would have some support in simply declining to issue a declaration of invalidity: see Mahe, at 392 “…the result of a declaration of invalidity would be to create a legislative vacuum. This result would not help the position of the appellants.” One could extend the reasoning here. But it is not clear that the abolition of peremptory challenges will not help the applicant. And even if it would help the applicant, the judge did not engage with the requisite analysis to make that conclusion. Instead, he relied on the nebulous notion of “Charter values” to assist his crafting of a remedy. It also is not clear that a legislative vacuum would be undesirable in this sense: judges would have the inherent power to craft the challenge process.

As is evident, there is much wrong with this decision. But at any rate, the issue of peremptory challenges has divided courts across the country. It will be interesting to see what happens on appeal.

R v Poulin: Charter Interpretation in the Spotlight


Section 11 (i) of the Charter guarantees the right to offenders “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.” Ambiguity ripples through this provision. Most notably, does the provision (a) denote a comparison of the lesser sentence at two relevant times (commission and sentencing) or (b) does it denote a broader look at all the changes in various sentencing provisions, as part of a consideration of variations between the time of the commission of the offence and the sentence? This latter approach could permit an offender to be entitled to a lesser sentence than the relevant ones in force at either the time of commission or the time of sentencing.

This was the issue faced in R v Poulin: does the former approach, called the “binary approach,” apply, or does the latter approach, called the “global approach” apply? Mr. Poulin sought a right to a conditional sentence, which was not in force at the time of the commission of his offence or at the time of sentencing. The conditional sentence, however, entered into force as a form of sentence in 1996 [10]. A global approach would permit Mr. Poulin to access a conditional sentence, because it was in force for a period of time between commission and sentence. A binary approach would not permit Mr. Poulin to access the sentence, because it was in force neither at the time of commission or the time of sentence (I note that there was a mootness issue raised in the case, which I do not address here).


The majority, written by Martin J, ultimately chose the binary approach. Despite the fact that the global approach is preferred among lower courts, Martin J wrote that “[r]ather than identifying the principles or purposes underlying s.11(i), [the lower courts] have simply concluded that s.11(i) should be given the interpretation most generous to the accused, which they have called the liberal interpretation” [55]. Rather, to Martin J, one must approach s.11(i) from a purposive perspective, as instructed by the Supreme Court in its seminal Charter cases: see Big M, Hunter v Southam [54].

A purposive approach to Charter interpretation, as noted by Martin J, should not be conflated with a generous interpretation [53-54]. Charter rights must be “interpreted liberally within the limits that their purposes allow”[54]. Purpose is found by looking at the language of a particular Charter provision [64], and the original context at the time of its enactment [72]; in other words, the language of the right in its “historic and philosophic” context: Big M Drug Mart, at para 117.

Conducting this analysis, Martin J found that the language of s.11(i) favoured the binary approach. In support of a global interpretation, the respondents relied on the language of s.11(i), which says that the offender is entitled to the lesser of two sentences if the sentence has been varied between the time of commission and sentence. To the respondents, “between” denotes an interval of time, not a measurement of two distinct periods of time. But Martin J ultimately concluded that this intervallic interpretation did not suggest a global interpretation: (“between” “only tells us that s.11(i) concerns itself with the situation where the punishment has been ‘varied between’ the time of the offence and the time of sentencing’” [67]). Rather, to her, the word “lesser” in the provision “evokes the comparison of two options” [68]. This language bounded the purpose of s.11(i) to a binary interpretation. What’s more, reviewing the context of s.11(i) at the time of its enactment, Martin J concluded that there “was nothing to inspire a global s.11(i) right at the time of its drafting and enactment,” in part because “none of the [international] enactments embraced one…” [72].

Martin J then noted that, even after this textual and contextual analysis, “[w]hat remains to be seen is whether the purposes of s.11(i) support a global interpretation of s.11(i), or whether there is any purposive basis to read s.11(i) globally…s.11(i) could still receive [a global] interpretation it its purposes justified it” [85]. Specifically, Poulin submitted that “a binary interpretation of s.11(i) would result in unfairness…where two offenders who committed the same crime at the same time are sentenced at different times, when different sentencing regimes are in force” [87]. Martin J rebuffed this argument by making three points: (1) relative punishments are “linked to the offender and the proceedings against him” and thus “are tethered to two points in time that bear a deep connection to the offender’s conduct and criminality” [90]; (2) a global approach would not ensure identical results for two offenders in the circumstances Poulin describes [95]; and (3) a global approach would disproportionately benefit those offenders who have a long period of time between commission and sentence, because it would allow the offender to pick and choose the lesser punishment [97]. What’s more, importantly, a global right would resurrect punishments “which Parliament has, by repealing or amending them, expressly rejected…” [100].

The dissent, penned by Karakatsanis J, disagreed. To her, the text of s.11(i) suggests a “continuum between the time of commission and the time of sentencing” [148]. Also, “lesser” does not denote a solely binary interpretation [149]. The consequence of this binary “technical” interpretation, to Karakatsanis J, “is contrary to this Court’s conclusion that a generous and purposive approach must be taken to the interpretation of Charter rights” [151]. Put this way, “there is no principled argument that would justify such a limitation…” [153]. Karakatsanis J’s point is due, in part, to the reliance interests that an offender has in choosing a particular course of action, central to the idea of the Rule of Law [152]. All of the choices an offender has to make in the criminal process, to Karakatsanis J, should not be made on the basis of two artificial points in that process [153]. Instead, the entire continuum of possible options should serve to benefit the offender.


In my view, the majority clearly had the better argument in this case. This is true for a number of reasons.

First, as a matter of criminal law, it seems odd to me that an offender can pick and choose the lesser sentence that was in force (if only briefly) in between the time of offence and the time of sentence. Yet this is the upshot of the global interpretive approach to s.11(i). As Martin J notes, the time of commission and the time of sentence are not two “artificial points” for a particular offender, as Karakatsanis J opined. Rather, they are points that are intimately connected to a particular offender and his crimes. When an offender chooses to commit a crime, he chooses with the backdrop of the existing law behind him. When an offender is sentenced, it would be truly unfair to subject her to a greater sentence than the one she risked at the time of offence; but one can hardly call it unfair to limit the potential sentencing options to those in force when the offender made the relevant choice and when he is about to be given the sentence. Indeed, this is what is textually prescribed by s.11(i). Karakatsanis J would respond that other choices–such as the choice to instruct counsel, and the choice to accept a plea agreement–are relevant on this spectrum. But as Martin J said, the right to s.11(i) does not speak to all of these choices. Rather, the text mentions the time of the offence and the time of sentence, and so “there is no principled basis to grant an offender… the benefit of a punishment which has no connection to his offending conduct or to society’s view of his conduct at the time the court is called upon to pass sentence” [90].

Secondly, Martin J is completely right to note that there are powerful Rule of Law reasons to reject a global approach, insomuch as that approach revives sentences that the people, through Parliament, rejected. Section 11(i) is a constitutional right that basically incorporates by reference Parliament’s choices. It would be an odd consequence of a global approach that Parliament’s choices—which have since been repealed—should give effect to a particular constitutional provision. This would have the effect of subjecting someone to a law—perhaps a favourable one, true—that is no longer on the books. Yet this is contrary to a basic premise of the Rule of Law, which undergirds s.11(i) as a fundamental purpose.

Thirdly, the majority’s purposive analysis is far more convincing than the dissent’s, in both general terms and in its assessment of text. The majority is absolutely correct to draw a distinction between a “purposive” approach to interpretation and a “generous” approach to interpretation. These do not mean the same thing. As Professor Hogg noted long ago, a purposive approach will tend to narrow a right to clearly defined purposes. In this sense, it would be odd to speak of a purposive approach operating concurrently with a generous approach—except to the extent, as Martin J notes, that one can interpret particularly rights generously within their purposes. But this strikes me as dancing on the head of a pin. More likely, a purposive approach will narrow a right to defined purposes. This makes the dissent’s focus on “generous” and “purposive” interpretation somewhat nonsensical.

The majority, sensibly, first looked to the text to set the boundaries on the right. This is a preferable approach to reasoning backwards from putative purposes, and then using those purposes to denote the meaning of text. Starting with the text makes sense because it is the meaning of the text that is under consideration. We move on to deriving purposes from that text, not the other way around. And on this front, the majority’s textual analysis is preferable to the dissent’s. The dissent relied only on dictionary meanings to discern the meaning of the text. But this is a thin reed on which to rest the meaning of text which arose not in a dictionary, but in the context of constitutional debates among human beings. Rather, the majority focused on the common usage and understanding of the word “lesser,” as real human beings use it:

Whereas comparative terms ending in “est” or “st” single out one thing from the others, comparative terms ending in “er” contrast one thing with another. For instance, we speak of the “better” of two options and the “best” of multiple, the “higher” of two heights and the “highest” of multiple, the “faster” of two speeds and “fastest” of multiple, to give only a few examples. Instead of employing the obviously global phrase “the least severe punishment” (or even “the lowest punishment”), s. 11 (i) uses the binary language “the lesser punishment”.

This is more persuasive than dusting off a dictionary and using that as a sole or determinative basis on which to discern text. While dictionary meanings can shed light on text, common usage should be a key concern of textual interpretation, where dictionary and common meaning differ.


This case raises lots of interesting issues, both relating to the Constitution and to criminal law. Ultimately, I think the majority had the better of the argument.

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.