Just Asking

Should the power over criminal law be transferred to the provinces?

Let me ask you what might be a provocative question: is there a good reason why criminal law and criminal procedure should be a matter of federal jurisdiction in Canada? The initial choice of the Fathers of Confederation to make them matters for Parliament under section 91(27) of the Constitution Act, 1867 was justified and turned out well, I think. But the reasons that were relevant at Confederation, and for a century thereafter, no longer hold true. Should we amend the constitution to make criminal law a provincial power ― and, if so, on what conditions?

I should note that this post is just me thinking on the screen. I do not mean it as a definitive word on anything. I am not an expert on criminal law, and might be missing something important. By all means, tell me if, and why, you think I’m wrong (or more wrong than usual). Still, I thought these questions are worth thinking about.


So far as I can tell ― and I haven’t done any actual research on this, so I may just be spewing out preconceptions and received wisdom here ― criminal law and procedure being a federal power continues the basic divide established as early as the Quebec Act 1774. Private disputes would be “determined agreeably to the said Laws and Customs of Canada“. To preserve the ability of the French Canadian majority in Québec to control (most of) its private law, “property and civil rights” became subject to provincial jurisdiction at Confederation. By contrast, the Quebec Act maintained English criminal law in force:

whereas the Certainty and Lenity of the Criminal Law of England, and the Benefits and Advantages resulting from the Use of it, have been sensibly felt by the Inhabitants, from an Experience of more than nine Years, during which it has been uniformly administered; be it therefore further enacted by the Authority aforesaid, That the same shall continue to be administered, and shall be observed as Law in the Province of Quebec, as well in the Description and Quality of the Offence as in the Method of Prosecution and Trial.

The lenity of the Criminal Law of England was such that dozens if not hundreds of offences could lead to hanging, but that was still better than judicial torture, which had existed under ancien régime French law. Here again, Confederation ensured that the status quo would continue, by putting criminal law within Parliament’s jurisdiction ― in contrast to the situation that prevailed in the United States and that would prevail in Australia.

This was as well. I doubt there was any chance of French criminal law being brought back to Canada in the 19th century ― even maintaining the old civil law proved a frightful challenge, which was one of the reasons for the introduction of the Civil code of Lower Canada (as I explained here). But given the relative moderation of federal politics in comparison with what went on in some of the provinces, notably with the authoritarian regimes of the Social Credit in Alberta and the Union Nationale in Québec, federal control over criminal law has been a blessing. It was the reason, notably, for the invalidation of Québec’s ban on “communistic propaganda” in the notorious “Padlock Act” in Switzman v Elbling, [1957] SCR 285.

But something very important happened since then: the enactment of the Canadian Charter of Rights and Freedoms. Section 2 of the Charter protects Canadians across the country from dictatorial legislation such as the Padlock Act. Sections 7 to 14 of the Charter entrench substantive, formal, and procedural provisions historically associated with the “certainty and lenity of the criminal law of England”. Section 24 of the Charter and section 52(1) of the Constitution Act, 1982 provide remedies against governments and legislatures that disregard these rights. These judicial protections (subject to an obvious caveat, to which I will get shortly) are likely to be more effective than the structural devices employed at Confederation. After all, we know that Parliament keeps enacting, and the courts ― to the chagrin of “tough-on-crime” politicians and even some misguided judges ― keep invalidating absuvie criminal laws. As a result, it’s not obvious to me that the centuries-old reasons for making criminal law a federal matter are still valid.


Meanwhile, there are other considerations, some also longstanding but others less so, that support transferring this power to the provinces. The former category includes the principle of subsidiarity: the idea that power should be decentralized and exercised as closely to the citizen as it can be effectively exercised. It’s not clear to me why the provinces couldn’t competently and effectively legislate over criminal law and criminal procedure. As it is, they already legislate over provincial offences under section 92(15) of the Constitution Act, 1867. Since criminal law reflects moral considerations, it would make sense for Canadian provinces, with differing moral outlooks of their electorates, to be in charge of defining this law for themselves. Other usual benefits of decentralization, such as the possibility of provinces experimenting with different policies, within constitutional constraints, would also apply.

The more novel benefit of transferring the power over criminal law to the provinces would be to nip in the bud the tendency for Parliament to rely on the criminal law power to enact regulatory schemes that invade areas of provincial jurisdiction ― or, rather, since this tendency is already well-developed, to pluck off its increasingly putrid flower. Examples of this tendency, all upheld at least in part, include laws dealing with tobacco advertising, the registration of firearms, assisted human reproduction, and most recently genetic non-discrimination. (Shannon Hale blogged here on her and Dwight Newman’s critique of the Supreme Court’s lax approach to Parliament’s criminal law power in Reference re Genetic Non‑Discrimination Act, 2020 SCC 17.) Denying Parliament the power to make criminal law would not only allow us to reap the benefits of federalism in this area, but also to preserve them in others.

Now, I do think that some safeguards must be in place for this change to the distribution of powers to work well. One is already part of the Canadian constitution’s design. Others will need to be implemented as part of a package of amendments together with the transfer of jurisdiction over criminal law to the provinces.

The (mostly) existing safeguard the appointment of the judges of the superior courts, who preside at the most significant criminal trials, by the federal rather than the provincial governments. This has been an important barrier against the power of populist provincial governments. It will become an even better one if the federal government exercises its appointment power without being distracted by populist tough-on-crime considerations that caused it, for example, to introduce police officers into the selection committees that vet prospective judges. However, for this system to continue to work well, it will need to be coupled with an assurance that at least the more serious criminal cases will continue to come to the superior courts, either for trial or, at least, on appeal. Section 96 of the Constitution Act, 1867 may do this already, but I would prefer an explicit addition to section 11 of the Charter.

The other additional safeguards I would want to see include, first and foremost, the repeal of the Charter‘s “notwithstanding clause“, which allows Parliament and, more to the point, provincial legislatures, to suspend the effective protection of the rights entrenched in sections 2 and 7-15 of the Charter. At a minimum, the protections of the rights of the accused in sections 7-14 should be free from the threat of override; but it is highly desirable that the substantive protections of fundamental freedoms in section 2 should be so too. Section 15 is perhaps less relevant here, but there is no reason to maintain the “notwithstanding clause” for its sake. The reason for contemplating transferring the criminal law power to the provinces, despite the greater risk of populist takeovers, is that the Charter protects against its being abused. This protection must be effective at all times, and not at the provincial legislatures’ sufferance.

Lastly, some additional adjustments to the division of powers scheme will be necessary. For one thing, a federal equivalent of the current section 92(15) will be necessary to replace Parliament’s plenary criminal law power. Just like the provinces now, Parliament should be able to provide for penal enforcement of its legislation. Moreover, some measure of extra-territorial criminal power will need to remain with Parliament as well. There is of course some danger that even this limit grant of power will be abused. This is what has happened in the United States, despite Congress not having any explicit criminal law powers. The crimes created under the power to enacted laws “necessary and proper for carrying into execution” Congress’s other powers have become literally innumerable: when the American government tried to count all of the offences on its books, it failed. (Some are documented by a darkly humorous Twitter account.) However, the Canadian jurisprudence on the division of powers generally, and on ancillary powers in particular, is much more robust than its American counterparts, so one can reasonably hope that this American disaster can be avoided in Canada. For another, while the federal power over penitentiaries in section 91(28) will no longer make much sense, a more limited power to maintain a carceral system for those convicted of the remaining federal offences will be necessary.


Needless to say, there is very little chance of my proposals ― even assuming that they make sense which, to repeat, they may well not ― ever being taken up. Even apart from Canada’s general, and I’m inclined to think generally sound, aversion to constitutional tinkering, I just don’t see Parliament giving up such a high-profile legislative power that has, for politicians, the virtue that its exercise allows for relatively low-cost grandstanding and virtue-signalling. But who knows. And, if nothing else, I think we should from time to time ask ourselves whether the existing division of powers makes sense, if only to remind ourselves of the reasons why we have it and why, on the whole, it is a good and useful thing.

Throwing Away the Key

Thoughts on life imprisonment without parole, in New Zealand and in Canada

Last week, Justice Mander of New Zealand’s High Court sentenced the Christchurch mosque shooter to life imprisonment without the possibility of parole for the murder of 51 people, attempted murder of 40 others, and terrorism. This punishment is provided for by section 103(2A) of New Zealand’s Sentencing Act 2002.

Justice Mander’s sentencing remarks in R v Tarrant, [2020] NZHC 2192hold some lessons for Canadians, as the Québec Court of Appeal is considering the appeals of both the Crown and the accused from the sentence the Superior Court imposed on the Québec mosque shooter in R v Bissonnette, 2019 QCCS 354. In that decision, about which Maxime St-Hilaire and I wrote here, Justice Huot found the possibility of stacking parole ineligibility periods for multiple murders in a way that amounted to sentencing those who commit them to life imprisonment without parole to a cruel and unusual punishment and a deprivation of liberty contrary to principles of fundamental justice, contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms.

Although stating that “the needs of denunciation, of setting an example, and of incapacitation” are especially “pressing” [766; translation mine], Justice Huot went on to find that life imprisonment without a realistic prospect of parole was contrary to Canadian values. Canada, he wrote, “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; tanslation Professor St-Hilaire’s and mine] For him, the possibility of rehabilitation, even for the worst offenders, means that it is “sophistry to assert that [multiple murderers] should reasonably expect, in a free, civilized, and democratic society, to spend the rest of their days behind bars”. [975] Justice Mander’s cogent remarks help show that this was wrong.


Justice Mander, it worth noting, is by no means insensitive to considerations of humanity and anti-populism that apparently influenced Justice Huot so much. He considers the prospects of rehabilitation, and notes that “[t]he sentence [he] impose[s] must represent a civilised reaction based not on emotion but justice and deliberation”. [177] But these concerns are not dispositive in a case such as this.

Addressing Mr. Tarrant, Justice Mander explains that his

prime objectives are threefold. First and foremost, to condemn your crimes and to denounce your actions. Second, to hold you accountable for the terrible harm you have caused — in plain terms, to attempt to impose some commensurate punishment … on behalf of the whole community, which in particular includes the victims of your crimes and their families, all of whom are a part of New Zealand’s multicultural society. Third … to protect the community from a person capable of committing cold-blooded murder on such a scale and who presents such a grave risk to public safety. [124]

Justice Mander notes that section 9 of New Zealand bill of Rights Act 1990 prohibits the imposition of “disproportionately severe … punishment” (judicially interpreted as calling for a test of gross disproportionality ― similar to the one applied to test the constitutionality of legislation under section 12 of the Canadian Charter of Rights and Freedoms). He notes, also, that “[t]here is European jurisprudence that indicates the imposition of a whole-of-life sentence in the absence of any effective review mechanism is incompatible with
international human rights instruments”. [139] Nevertheless, he finds that nothing short of a life sentence without parole would be proportionate to the crimes here.

Let me quote just one paragraph about the facts (this one drawn from Justice Mander’s discussion of the aggravating circumstances). It is horrible, and there is, alas, so much more horror in this case ― as there was in the Bissonnette one:

It is self-evident that your offending constituted extreme violence. It was brutal and beyond callous — your actions were inhuman. You deliberately killed a threeyear-old infant by shooting him in the head as he clung to the leg of his father. The terror you inflicted in the last few minutes of that small child’s life is but one instance of the pitiless cruelty that you exhibited throughout. There are countless more examples. You showed no mercy. [151]

In Justice Mander’s view,

no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold you to account for the harm you have done to the community. Nor [would] minimum term of imprisonment would be sufficient to denounce your crimes. [179]

Indeed, in a comment particularly relevant to the comparison the sentence he imposes with Justice Huot’s preoccupation with not letting people spend their lives behind bars, Justice Mander observes that, were he “to impose a minimum period of imprisonment in an endeavour to meet the purposes that I am required to achieve in sentencing you for murdering 51 people, it could not be less than [Mr. Tarrant’s] natural life”. [180] Ultimately, he does

not consider, however long the length of your incarceration during your lifetime, that it could, even in a modest way, atone for what you have done. Ordinarily such an approach would be a poor guarantee of just and proportionate punishment, but I consider yours is one of those exceedingly rare cases which is different. [184]

I think that Justice Mander is right about all of this. Justice Huot, who would no doubt hurl accusations of “sophistry”, populism, and other assorted sins, would not only be wrong but, at the risk of sounding pompous, morally obtuse. Collective indifference and forgetfulness are not just, or even primarily, concerns in relation to those who commit terrible crimes. It would be no less ― and indeed much more ― wrong to be indifferent to the crimes themselves. And it will still be wrong decades from now.

As I recently wrote in discussing an Alberta judgment on the application of section 12 of the Charter, I think that the gross disproportionality test is a sensible construction of its “cruel and unusual punishment” prong, so far as individuals (rather than legal persons) are concerned. Well, I don’t think there is anything grossly disproportional, or indeed disproportional in any way, in denying the possibility of parole to a man who presents himself to a place of worship with the sole purpose of killing as many people as possible, and proceeds to do just that. On the contrary, I think justice may well demand no less. Perhaps there are policy considerations that would explain why a legislature might not put that option on the table. But at the level of principle, I think the New Zealand approach of making the life without parole sentence available in cases where the objectives of punishment cannot be met by a lesser one is right. The Canadian approach of making the parole non-eligibility terms of multiple murderers run consecutively amounts to the same thing, but less transparently, so I think the New Zealand one is preferable.

Granted, the sentencing court should consider repentance and the prospect, even if unlikely on balance, of rehabilitation. There seems to be a difference on this point between the Québec and Christchurch cases, and if this were the reason for Justice Huot’s decision not to impose, in effect, a life sentence without parole, it might have been defensible. (I’m not sure it would have been. Luckily I’m not a judge in charge of sentencing mass murderers, so I get to punt on this question.) But that’s not the main consideration that motivated Justice Huot. On the contrary, he felt strongly enough the need to denounce and punish Mr. Bissonnette that he rewrote (which is a nice way of saying “broke”) the law to impose a 40-year parole ineligibility period, instead of a 25-year one. That suggests that, ultimately, he thought that, as in the Christchurch case, punishment and denunciation dominate. And, if so, a sentence without parole is warranted.


I fully agree with Justices Huot and Mander that the measure of just punishment is not its ability to grab the headlines, and that a civilized justice system must move away from the “an-eye-for-an-eye” instinct. Cases such as these remind us, in any event, the futility of such fantasies. Even if we were in the business of killing murders, we couldn’t kill them six, or fifty-one, times over.

But Justice Mander’s sentencing remarks are a reminder that one need not be vengeful, or to simple-mindedly parrot the tough-on-crime line, to find, in truly shocking and exceptional cases, that the most severe punishment is warranted. Protecting the lives of the citizens is the state’s first responsibility on any plausible view of its role. Providing justice, in the form punishment, in response to those who take their fellow human beings’ lives is the second. In the face of contempt for human life and indifference to, if not actual pleasure in, human suffering, retribution is called for. In extreme cases, locking such people up and throwing away the key is only fair. I do hope that the Québec Court of Appeal, and the Supreme Court if comes to that, take note.

Unusual Indeed

The trouble with a caustic, pseudo-originalist opinion of Wakeling JA

In my last post, I described the decision of the Alberta Court of Appeal in R v Hills, 2020 ABCA 263, which upheld a mandatory minimum sentence for the offence of firing a gun into a place “knowing that or being reckless as to whether another person” is there. Two of the judges, Justices O’Ferrall and Wakeling delivered concurring opinions in which they called on the Supreme Court to reconsider its jurisprudence on mandatory minimum sentences and indeed on the interpretation of section 12 of the Canadian Charter of Rights and Freedoms, which protects against “any cruel and unusual treatment or punishment”, more broadly, notably R v Smith, [1987] 1 SCR 1045 and R v Nur, 2015 SCC 15, [2015] 1 SCR 773. I summarized the arguments made by both of the concurring judges in the last post.

Here, I consider specifically Justice Wakeling’s opinion. It is very unusual indeed, in both substance and form. It deploys unorthodox and, in my view, untenable, interpretive techniques, and arrives at startling conclusions. It is long, seemingly scholarly (though there is less real scholarship to it than meets the eye), and caustic. I don’t recall reading anything quite like it in Canada, though admittedly I do not read as many judgments as I would like, especially below the Supreme Court level.


Let me begin with Justice Wakeling’s approach to constitutional interpretation. Justice Wakeling does not explain what he is doing, which is unfortunate, because an explanation might have clarified matters ― not least to Justice Wakeling himself. Be that as it may, what Justice Wakeling seemingly does is resort to a sort of expected applications originalism. This is a way of describing attempts to interpret constitutional provisions by asking how their framers would have expected a question about their application to be resolved. This is a fool’s errand. Serious originalists have long given up on what Benjamin Oliphant and I have described as “speculative transgenerational mind reading”. (126) As Randy Barnett has written, “ascertaining ‘what the framers would have done’ is a counterfactual, not a factual or historical inquiry”. (71)

But Justice Wakeling’s version of expected applications originalism is particularly bad, because he refers to a great extent to events and real or purported beliefs that long predate the enactment of the Charter. Indeed his discussion of the Charter and the views, if any, of its framers is remarkably brief. Justice Wakeling points out that the late

Professor Hogg predicted in 1982 that Canadian courts would give section 12 of the Charter “the same interpretation” courts gave section 2(b) of the Canadian Bill of Rights. In other words, section 12 was of minimal value. Modern political realities made a constitutional death-penalty watch dog unnecessary. And that was the only role section 12 was intended to serve. [217; references omitted]

Most of what Justice Wakeling has to say about the meaning of section 12 goes back much further. The Bill of Rights 1688 is of special significance to him, as he argues that its

prohibition of cruel and unusual punishment was undoubtedly a response, either entirely or, at least partially, to the blood-thirsty sanctions Chief Justice Jeffrey and the other judges imposed on supporters of the 1685 Monmouth Rebellion that challenged the rule of the Catholic King James II during the Bloody Assizes of 1685 and the brutal flogging imposed on Titus Oates for his perjured testimony that cost a large number of Catholics their lives. [148]

From this, Justice Wakeling draws a straight line to the Eighth Amendment to the US Constitution, the Canadian Bill of Rights, and the section 12. He describes the US Supreme Court’s departure from the focus on “horrific penalties” akin to torture and its embrace of disproportionality as a touchstone for assessing violations of the Eighth Amendment in Weems v United States, 217 U.S. 349 (1910) as “judicial heresy”, and writes of the author of the majority opinion in that case that “Justice McKenna’s fingerprints are all over” Smith, [187] and thus subsequent section 12 jurisprudence.

This approach to the interpretation of section 12 makes no sense. Even on an originalist view, why should the meaning of the Charter be determined by what might have been the intentions or expectations not of its framers, but of those of the Bill of Rights 1688, the Eighth Amendment, or even the Canadian Bill of Rights? This isn’t expected applications originalism but expected applications pre-originalism. I know of no precedent or justification for it.

The better originalist approach is that which focuses on the public meaning of constitutional provisions. Historical antecedents are not irrelevant to establishing public meaning (and I have referred to the Magna Carta and the Bill of Rights 1688 myself in writing about section 12 here). However, they are useful in that they ― and their interpretation ― helps us ascertain how a contemporaneous reader would have understood the provision when it was enacted. That being so, the signicance of Weems and subsequent American jurisprudence is very different from that which Justice Wakeling attributes to them. Whether or not they were accurate interpretations of the Eighth Amendment’s original meaning is beside the point. What is noteworthy is that these interpretations would have been part of the context in which section 12 was enacted, and so colour the public meaning the phrase “cruel and unusual punishment” had by the time the Charter was adopted.

A related problem with Justice Wakeling’s approach to interpretation is his use of texts that use wording different from that of section 12 to suggest that the meaning of section must be different. This can be a very useful interpretive tool, but it has to be wielded carefully and honestly. Justice Wakeling relies on three comparisons: with early the constitutions of some American States; with a rejected draft of the Canadian Bill of Rights; and with section 9 of the New Zealand Bill of Rights Act 1990. All of these texts explicitly refer to proportionality, whereas section 12 does not.

Of these, the American texts are somewhat expansive policy statements, of a kind that was mostly ― except, notoriously, in the case of the Second Amendment ― rejected in (what became known as) the US Bill of Rights. The absence of such a statement from the Eighth Amendment doesn’t prove that it disproportionality is not part of its permissible construction. (Somewhat similarly, the absence of an explicit reference to separation of powers, analogous to that found in some State constitutions, in the US Constitution doesn’t mean it does not in fact provide for separate powers.)

With respect to the proposed wording of the Canadian Bill of Rights, Justice Wakeling says that “[a] number of commentators criticized its vagueness”. [201; reference omitted] The concerns of the only such commentator whom Justice Wakeling actually quotes are telling, for he worried, in part about whether a reference to “inhuman or degrading” punishment might be taken to outlaw flogging. Yet Justice Wakeling himself notes that the British “Parliament has repealed the brutal punishments that prompted the 1689 Parliamentary prohibition of cruel and unusual punishments” [153] ― including “flogging”! [154] That commentator’s concerns, in other words, do not deserve to be taken seriously, on Justice Wakeling’s own account. (The reference to flogging is interesting in another way, to which I will shorty turn.) And anyway the exclusion of words like “inhuman” because of their vagueness does not prove that the words retained did not have an element of vagueness calling for construction.

Lastly, the reference to the New Zealand Bill of Rights Act strikes me as quite inappropriate, since that statute was enacted eight years after the Charter. Some of its provisions sought to remedy avoid the Charter‘s real or perceived ambiguities; they tend to be more specific than the Charter‘s. (Compare, for example, New Zealand’s distinct provisions on “freedom of thought, conscience, and religion” and the “manifestation of religion and belief” with section 2(a) of the Charter.) In the case of section 9, one might suppose ― I have not looked into this ― that they New Zealand drafters thought that the outcome of Smith was justified and wrote it into the statute in so many words for the avoidance of doubt. But their choice to do so does not mean tell us anything about the meaning of the Charter, whose drafters were obviously not aware of the subsequent work of their Kiwi counterparts.

The last interpretive issue I will address here is Justice Wakeling’s reading of section 12 as a mere enumeration, and a remarkably brief one at that, of prohibited punishments. One striking consequence of this reading is that Justice Wakeling thinks that, because imprisonment was a commonly used punishment when the Charter was enacted and thus not unusual,

section 12 … does not allow a court to declare jail sentences cruel or unusual punishments. … [O]ffenders may not invoke section 12 to challenge either mandatory-minimum or mandatory-maximum jail sentences or any other jail sentence. [244]

(It is worth noting that Justice O’Ferrall “question[s]” [115] and indeed seems to reject this view.)

Justice Wakeling repeats a mistake committed by Justice Scalia, including in his comments on the Eighth Amendment in the famous lecture “Originalism: The Lesser Evil”. Justice Wakeling refers to some of Justice Scalia’s decisions seeking to limit the import of the Eighth Amendment to the 1791 catalogue of barbarity ― but not to that lecture where, tellingly, Justice Scalia professed being a “faint-hearted” originalist, because he wouldn’t bring himself to countenance the punishment of flogging even if was practised in 1791. The catalogue approach, it seems, doesn’t really work.

In a lecture of his own, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism“, Randy Barnett explains why. He points out that

original public meaning originalism attempts to identify the level of generality in which the Constitution is objectively expressed. Does the text ban particular punishments of which they were aware, or does it ban all cruel and unusual punishments? (23)

As Professor Barnett notes, “[t]his is not to say … the broader provisions of the text lack all historical meaning and are open to anything we may wish them to mean”. (23) But that meaning, if there is one, must be established with reference to the time of those provisions’ enactment ― not to a period that preceded it by two or three centuries. Justice Wakeling’s own reasons suggest that, whatever may have been the case in 1689 or even 1791, the phrase “cruel and unusual” may well have acquired a broad and morally loaded meaning by 1982. He does not even contemplate this possibility.


This leads me to concerns about the form and tone of Justice Wakeling’s opinion. It has an air of scholarliness: at over 12,000 words and 200 footnotes, it has the heft of an academic article. And yet this is only an appearance. It is inimical to good scholarship ― even, I would argue, in a judicial opinion, and not only in an academic setting ― to ignore counter-arguments and relevant sources that do not support one’s claims. Meanwhile, a great many of those footnotes turns out to cite to Justice Wakeling’s own opinions; a flaw of much academic writing, my own not excepted, but manifested here to an inordinate degree.

And then there is the bitter vehemence of Justice Wakeling’s writing. From the outset, he heaps scorn on the Supreme Court’s precedents, calling the “reasonable hypothetical” approach to section 12 they command “remarkable, to say the least”, [124] and claim that “[t]here is no constitutional doctrine that justifies this unusual method”. The decision in Smith is “surprising[]” [219] and “unexpected”. [220] “The contribution” that an argument made by Justice Lamer ― to whom Justice Wakeling denies the courtesy of a “as he then was” ― “makes to the debate is difficult to comprehend”. [226]

But Canadian courts and judges are not the only targets of Justice Wakeling’s contempt. I have already referred to his desription of Weems as “heresy”. If this were said about a fellow judge on Justice Wakeling’s court, this would be as mean as any of Justice Scalia’s cantankerous dissents. Still, such disagreements can appropriately be aired. But judges do not normally take it upon themselves to critique their colleagues in other jurisdictions. Not only is Justice Wakeling not qualified to pronounce on what it orthodox and what is heretical under American law ― it’s just not his job. Not content with commentary on the past, however, Justice Wakeling dabbles in political prognostication too, declaring that he

suspect[s] that the likelihood that additional states will abolish the death penalty is probably about the same as the likelihood that the Supreme Court – with a majority of conservative-minded justices – will sanction additional limits on the availability of the death penalty. [181; reference omitted]

To be clear, I have no objection to a judge expressing disagreement with the jurisprudence of a higher court. On the contrary, judicial criticism of binding authority ― so long as that authority is followed ― can be valuable; no less, and arguably more, than that of scholars and other commentators. If the lower courts are saying that a legal doctrine is not working well, the higher courts would do well to listen ― though they need not agree, and they should not agree in this case, as I argued in my last post. Justice O’Ferrall’s opinion strikes me as perfectly fine. But not so Justice Wakeling’s.

I have been tone-policed enough to be wary of engaging in such critiques myself. But Justice Wakeling is, after all, a judge ― and I think that judges can rightly be held to a standard of equanimity that should not be applied to academics, whose role it is to critique, and sometimes criticize, the exercise of the judicial power. I have also defended the use of strong language in judicial opinions. Still, there are lines not to be crossed. A judge ought not to be dismissive or petulant; nor should he engage in political commentary or, I think, make any sort of pronouncement on the merits of the laws (enacted or judicially articulated) of other countries. Justice Wakeling is and does all of these things. If he wants to act like a politically preoccupied professor, he should resign his judicial office.


I do not know how widespread the views expressed by Justices O’Ferrall and Wakeling are. Perhaps the Supreme Court will take heed and reconsider its jurisprudence in relation to section 12. In any case it will face other difficult questions about the interpretation of the Charter. Justice Wakeling’s opinion illustrates a number of things not to do in such cases. Courts should not look to the ways the authors of constitutional provisions, let alone the authors of their predecessors, expected these provisions to be applied. They should not be careless, let alone deliberately unfair, when they compare different texts. They should not convert moral language into laundry lists. And, of course, they should not be mean-spirited. Justice Wakeling’s opinion is unusual indeed, and I hope it stays that way.

Counter-Rebellion

Judges of the Alberta Court of Appeal question the Supreme Court’s jurisprudence on mandatory minimum sentences

Last month the Alberta Court of Appeal issued an interesting decision that concerned the constitutionality of yet another mandatory minimum sentence, this one in section 244.2 of the Criminal Code, for “intentionally discharg[ing] a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place”. The mandatory minimum is four years’ imprisonment (or more if organized crime is involved). For fairly straightforward rasons given by Justice Antonio, R v Hills, 2020 ABCA 263, upholds the four-year mandatory minimum, rejecting the claim that it is “cruel and unusual” within the meaning of section 12 of the Canadian Charter of Rights and Freedoms.

But in separate concurring reasons Justices O’Ferrall and Wakeling go on to criticize the Supreme Court’s approach for dealing with such cases. Both concurring opinions raise important questions, not only about the correct approach to mandatory minimum sentences under section 12 of the Charter, but also about constitutional interpretation and construction more broadly.

In this post, I summarize Justice Antonio’s lead opinion, as well as the common aspects of the two concurring ones, and explain why I think the Supreme Court is right and Justices O’Ferrall and Wakeling are wrong about section 12. In a follow up post, I shall write in some detail about Justice Wakeling’s opinion, which is startling, and startlingly wrong, in its method and tone, and deserves special attention and criticism.


In R v Smith, [1987] 1 SCR 1045 and, more recently, R v Nur, 2015 SCC 15, [2015] 1 SCR 773, the Supreme Court held that a mandatory minimum sentence that is “grossly disproportionate” to the gravity and blameworthiness of an offence is “cruel and unusual” within the meaning of section 12. Gross disproportionality can be shown either in the particular case or, alternatively ― and controversially ―, in a reasonable hypothetical, a set of circumstances that can be expected to occur and that would be captured by the impugned provision. This is the approach that the accused in Hills took.

Mr. Hills pleaded guilty to having repeatedly fired a rifle “suitable for big game hunting” [4] into the walls and windows of a family residence ― among with less frightening misdeeds, all part of a rampage undertaken in a state that a former Toronto mayor would have described as drunken stupor. The sentencing judge considered that the mandatory minimum would not be grossly disproportionate to his offence, but it could be in a reasonable hypothetical, mainly because the applicable definition of “firearm” captures weapons shown by an expert to be incapable of penetrating a typical building wall. One could therefore reasonably imagine the four-year sentence being imposed on a person who fired a weapon “at a place” whose occupants were not thereby endangered. The judge sentenced Mr. Hills to three and a half years’ imprisonment.

Justice Antonio (with whose reasons Justice O’Ferrall agrees, so far as they go) considers this to be an error. This is because the shots fired even from low-power weapons might “penetrate a door or window”. [80] Moreover, the weapons or the shots might alarm bystanders or the people inside the place at which they are fired, and generally undermine “the feeling the safety in communities”. [82] Justice Antonio also refers to Nur, where

 a 40-month sentence was imposed on a 19-year-old first offender who merely possessed a loaded firearm in a public place for a short period of time and did not discharge it or use it in a threatening manner. If 40 months was an appropriate sentence in the Nur case, then an additional eight months as a mandatory minimum penalty where a firearm was actually used does not amount to a grossly disproportionate sentence.

Justice Antonio concludes that a fit sentence for Mr. Hills would be four and a half years’ imprisonment.


As mentioned above, Justices O’Ferrall and Wakeling both call for the Supreme Court’s decisions in Smith and Nur to be revisited insofar as they require the courts to undertake gross disproportionality analysis based on reasonable hypotheticals, and not only the facts before the sentencing court. Some of the arguments they make are similar. I address them here. Justice Wakeling’s opinion also makes additional points not raised by Justice O’Ferrall. I turn to them below.

The main argument on which Justices O’Ferrall and Wakeling rely is that the use of reasonable hypotheticals to test the constitutionality of mandatory minimum sentences is inconsistent with the import of section 12. Justice O’Ferrall argues that

[a]n interpretation [of the Charter] which relies on the presumed detriment to a non-existent offender if a certain term of imprisonment is imposed is not an interpretation which a citizen would contemplate. It is an interpretation which might legitimately surprise the citizen. It does not flow logically from the text of s.12 of the Charter. [108; see aslo Justice Wakeling’s comment at [126]]

For Justices O’Ferrall and Wakeling, since section 12 protects an individual “right not to be subjected to any cruel and unusual treatment or punishment”, only the situation of the offender before the court can be taken into consideration, and the courts should avoid invalidating provisions that might only hypothetically result in unconstitutional applications. Just as laws are not invalidated because they might be invoked to effect unconstitutional arrests, they should not be disturbed because they might, in some cases, lead to unconstitutional sentences. As Justice O’Ferrall puts it, “[b]ut for the approved reasonable hypothetical analysis, the accused could [sic] care less about the constitutionality of the law. His complaint is with respect to his treatment or punishment”. [109]

Indeed, Justices O’Ferrall and Wakeling reject the test of “gross disproportionality” itself, which the Supreme Court has long used as a proxy for deciding whether a punishment is cruel and unusual. Justice O’Ferrall argues that

A sentence may be disproportionate from the perspective of both the offender and the offence and yet … prescribed to achieve the fundamental purpose of sentencing, namely protecting society. Even a grossly disproportionate sentence may not be found to constitute cruel and unusual punishment if, for example, in order to stem the tide of a deadly pandemic, Parliament found it necessary to prescribe extremely harsh punishments for what otherwise might be regarded as minor misdemeanors. [117; see also Justice Wakeling’s comment at [132]]

I do not think that any of this is right.

Start with the meaning of section 12. The concurring opinions go wrong because they fail to distinguish between the interpretation and the construction of constitutional provisions. Interpretation is the activity of ascertaining the communicative content of the text. Construction is the elaboration of doctrines that allow the text to be given legal effect. Some cases can be resolved at the interpretation stage. As I have argued here, the interpretation of section 12, and specifically of the word “cruel”, can tell us that this provision does not protect corporations. But in other cases courts need to engage in (good faith) construction to apply vague language ― and that of section 12 is vague, if not quite as vague as some commentators would have believe.

The word “cruel” is not infinitely malleable, but it is not self-explanatory either. Unless they are going to rely on seat-of-the-pants impressionistic decision-making in every case, courts need to work out a consistent way to determine whether a given sentence is cruel and unusual. This is an exercise in construction, which is a form of legal reasoning. Unlike in the realm of interpretation, the presumed (actually, purely conjectured) reactions of reactions of citizens are not a useful guide to what the courts should do here. The courts’ task is not to avoid surprises ― the framers of the constitution make a certain degree of judicial creativity unavoidable when they use vague language ― but rather, as Randy Barnett and Evan Bernick have argued, to give effect to the purpose of the provision.

Is the test of gross disproportionality a misguided construction of section 12? In my previous post on that provision’s meaning (linked to above) I have suggested that it is not, so far as the punishment of natural persons is concerned. I wrote that “disproportionality can be a useful indication of cruelty”, provided that “also causes or reflects indifference to suffering”, which may “always be the case with grossly disproportional punishment is inflicted on human beings”. Justice O’Ferrall’s example is ambiguous and does not persuade me. It may be taken to suggest that in the circumstances of “a deadly pandemic” “what otherwise might be regarded as minor misdemeanors” become extremely blameworthy crimes. If so, there is no gross disproportionality in punishing them harshly, so long as the relevant circumstances exist. But if Justice O’Ferrall suggests that a public emergency justifies harsh punishment of unrelated offences, I don’t see how that follows.

If not the gross disproportionality test, is the reasonable hypothetical approach an impermissible construction of section 12? Actually, I think there are very good reasons for the courts to adopt it. Contrary to what Justices O’Ferrall and Wakeling say, a mandatory minimum sentence impacts an offender as to whom it would not be cruel and unusual, albeit indirectly. As Justice Arbour explained in her concurrence in R v Morrisey, [2000] 2 SCR 90,

mandatory minimum sentences … must act as an inflationary floor, setting a new minimum punishment applicable to the so-called ‘best’ offender whose conduct is caught by these provisions.  The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has  committed the offence in the very worst circumstances.  The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [75] 

Justice Wakeling’s own reasons illustrate this dynamic. He breaks down the range of sentences permitted by Parliament into bands for the least and most serious cases, and those in the middle. On this approach, if Parliament enacts or raises the mandatory minimum, the sentences of most offenders, except perhaps the very worst ones, go up. Of course, Parliament is entitled to intervene in sentencing. But the fact that its intervention impacts all offenders means that it is appropriate to consider its constitutionality even in cases where the minimum sentence would not have been cruel and unusual. At the risk of mixing metaphors, I think it’s not an implausible construction of section 12 to say that it does not permit the inflationary floor to be sullied by the cruelty of sentences required to be imposed even on some, albeit not all, offenders.

The other reason for the courts to continue to police reasonable hypotheticals might sound more in policy, but it too is relevant to section 12. It is plea bargaining. A prosecutor can threaten an accused person with a high mandatory minimum sentence so as to secure a guilty plea to some other, less serious offence. By the very nature of such situations, there is no scope for the mandatory minimum to be challenged; indeed the offence to which it is attached never even features before a court. But to the extent that the mandatory minimum has served to secure a guilty plea from a person who might be innocent (or at least might be able to raise a reasonable doubt about his or her guilt), its deployment by the prosecutor is, arguably, a form of cruel and unusual treatment that offends the Charter.


It has been set that the judicial response to the last Conservative government’s “tough on crime” agenda has been nothing less than a rebellion. Justice Wakeling professes himself “extremely troubled by the fact that Canadian courts have been busy striking down Criminal Code provisions that impose mandatory-minimum sentences”. [123] The concurring opinions in Hills are a counter-rebellion of sorts, directed not against Parliament but against the Supreme Court.

But the rebels are wrong. Their approach to constitutional text, which collapses interpretation and construction and oversimplifies constitutional meaning is not compelling. They fail to see the repercussions of mandatory minimum laws that deserve the suspicion with which the courts have treated them. The Supreme Court has often read constitutional provisions ― both power-conferring and rights-protecting ones ― more expansively than it should have. But I am not convinced that this is the case with section 12 of the Charter.


PS: I have neglected blogging on judicial decisions in the last couple of months, and will try to make up at least some of this backlog. If you have a case I should get onto in mind, please do get in touch.

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.

Setup

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).

Analysis

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

Introduction

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).

Decision

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.

Analysis

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.

Conclusion

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