The Rewards of Punishment

I wondered aloud, yesterday, about the difference between falsely shouting “fire” in a theatre and causing a panic, and producing an incendiary video likely to cause murderous violence half a world away. Actually, I wondered whether there was any difference; I wasn’t able to come up with a convincing distinction. Eugene Volokh, over at the eponymous conspiracy, has a post with an interesting suggestion.

Suppose, he says, we punish the makers of the insulting video that caused riots all over the Middle East this week:

What then will extremist Muslims see? They killed several Americans (maybe itself a plus from their view). In exchange, they’ve gotten America to submit to their will. And on top of that, they’ve gotten back at blasphemers, and deter future blasphemy. A triple victory.

Would this (a) satisfy them that now America is trying to prevent blasphemy, so there’s no reason to kill over the next offensive incident, or (b) make them want more such victories? My money would be on (b).

Now I think that, theoretically, there is a distinction between punishing the a person for offending another’s religious (or other) feelings, and punishing him for endangering lives, even though the reason lives are endangered is the offence he gave. Prof. Volokh considers the former possibility, and I the latter. But, in practice, the extremists who incite riots would be unlikely to see that difference; or if they saw it, they would be likely to wilfully blind themselves to it. They would look at the bottom line: they responded violently, and got what they wanted. And they’d be back for more.

This problem simply doesn’t arise in the case of the person who shouts “fire” in a theatre. He endangers people; he is punished for endangering people; end of story―there are no perverse consequences to worry about. This is a practical difference between the two cases. And, as I said in yesterday’s post, the law should be made and thought for the real world, and so must arguably take such practical differences into account.

Still, is this all there is to it? Should we forebear from punishing the maker of an insulting video only because of the perverse consequences of punishing him? Or, alternatively, do we think it’s all right to punish the panic-monger just because we know there’s no cost to doing so? Despite my musings on the importance of consequentialist thinking about matters usually thought of in terms of pure rights, I would like to think there is also a deeper normative difference between them, which justifies their differential treatment regardless of the consequences. But I still can’t tell what that difference is.

Shouting Fire

A hateful idiot makes a nasty video about Islam and posts it on Youtube. Predictably enough, similar things having happened a number of times over the last few years, murderous violence breaks out in some Muslim countries as a consequence. (Unusually, there have been Western victims this time.) Predictably too, some people have been calling for speech “insulting” others’ religious feelings to be banned and punished. My intuitions―and, I suppose, those of most of my readers―are vehemently opposed to any such bans. Sure it’s impolite and stupid to insult people. But, even putting to one side the (important) fact that one person’s insult is another’s critique, insults and stupidity are a price that we agree to pay for free speech.

But here’s a question. I think  we all endorse, in principle, Justice Holmes’s famous dictum, in Schenck v. United States, 249 U.S. 47, at 52 (1919), that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But how is the anti-Islam video different from the false cry of “fire”? It can’t be the veracity of that video, since it is not actually, “true” in the sense of relating provable facts. I doubt that it can be that the video presents opinions as opposed to false statements of fact, because, at least by the accounts I have seen, it presents itself as making statements of fact about the prophet Muhammad―though of course it not really possible, without inventing time travel, to strictly distinguish factual claims from opinion in such a matter. Nor is the distinction in the predictability of the consequences of making the movie and shouting fire in a theatre―it was, in fact, foreseeable that the movie would cause violent riots. Nor is the argument that that sort of consequence is somehow so wrong that we should deem it unforeseeable even though it really isn’t very convincing. Of course it is wrong for people to respond with murderous violence―all the more so against innocents―when their feelings are hurt. But it is also wrong for people to panic, even when there is a fire in a theatre. In a perfect world, there would be no senseless riots―but people would also evacuate burning theatres in an orderly fashion. We know that the world is, in fact, imperfect, and the law should account for that. I am missing something?

I certainly hope that I am. I am not willing to give up on my intuition about the impressibility of censoring insults. Nor am I inclined to give up on my intuition that Justice Holmes was right. What gives?

Brandishing Banishment

There was an interesting op-ed yesterday in the Globe & Mail, by Lorne Neudorf, a Cambridge PhD candidate, discussing the status and use of banishment as a punishment in Canadian law. Contrary to what we might be incline to suppose, banishment, understood as a legal injunction preventing the person subject to it from living in a certain place, is not just found in Norse sagas. It is, Mr. Neudorf writes, “banishment is an instrument in the judicial toolkit” in Canada:

Although rare, banishment orders are not unknown in Canadian law. Territorial restrictions may be built by judges into peace bonds, terms of bail and probationary orders as part of a sentence where permitted by the Criminal Code. Such orders require the accused to stay away from a particular geographic area for the safety of victims or for the benefit of the accused’s rehabilitation for a limited period of time. Banishment-type orders must balance these objectives with the potentially disruptive effect of the order on the accused and the accused’s constitutional rights, such as those to freedom of mobility and protection against cruel and unusual punishment.

Another consideration, he adds, it is not fair to protect one community, from which a person is banished, by dumping a trouble-maker on another community.

Mr. Neudorf’s review of the case law is instructive and worth a read. For my part, I am not very knowledgeable about this topic, though “a study of banishment” is actually on my ever-growing list of papers it would be interesting to write. (It is, alas, much easier to think up a bunch of great topics than to write even one mediocre paper!) I can only point to a few sources for further reading for those interested and some random thoughts:

1) A paper by UVic’s Jeremy Webber on “The Grammar of Customary Law,” which (among other interesting things) devotes considerable attention to aboriginal legal traditions, in many of which

the respect for autonomy extends to the very interpretation of society’s norms. There is great reluctance to impose a particular interpretation of the law either on any member (in some societies) or on someone of high rank (when the society is hierarchically ordered). Such an imposition is considered deeply incompatible with the person’s dignity. Indeed, this respect for a person’s moral autonomy may contribute to the prevalence of banishment as a punishment in many indigenous societies: rather than forcing compliance, the community treats offenders as having, by their conduct, placed themselves outside society. (606)

Actually, I think it makes sense to say that, if banishment is a response to a reluctance to impose an interpretation of norms, it is not really a form of punishment, but merely a form of dispute-resolution (or rather, dispute-avoidance). In the same way, a group of people can play a game according to some peculiar rule, and tell someone who is insisting that that’s not how it’s supposed to be played to play along or to leave. This group has no power to “punish” in a real sense, and banishment is the only way it can deal with disagreement, at least if negotiation fails. Similarly, it makes sense to say that expulsion from Canada of a non-citizen convicted of a serious crime – surely the most frequent use of banishment in Canadian law – is not a form of punishment (indeed it would arguably be unconstitutional if it were interpreted as such, because it would be discriminatory to punish non-citizens more severely than citizens for the same crime), but also a response to a refusal to “play along.”

2) The Supreme Court’s decision in Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, dealing with an attempt by a private (religious) community to expel recalcitrant members, thereby depriving them of their property rights. Like portions of prof. Webber’s paper, it is also a study of the interaction between state and non-state, and formal and informal normative orders, and raises the question whether banishment is a form of punishment or something else (and indeed whether that’s a yes-or-no question).

3) Last but not least, a recent article by Yale’s Oona Hathaway and Scott Shapiro in the Yale Law Journal on “Outcasting: Enforcement in Domestic and International Law,” which I have not yet had a chance to read, but which seems to argue that “outcasting” or banishment is a form of law enforcement―perhaps raising questions about distinction between enforcement and punishment.

Minus the Mandatory Minimum

Last week, another mandatory minimum sentence introduced as part of the federal government’s “tough-on-crime” agenda was declared unconstitutional, this time by the Ontario Court of Justice. The provision at issue in R. v. Lewis, 2012 ONCJ 413, is par. 99(2)(a) of the Criminal Code, and imposes a mandatory minimum of three-years’ imprisonment for a first-time firearms trafficking offence.

The accused had sold some cocaine to an undercover police officer posing as a low-level dealer, and offered to sell him a handgun. The judge found, however, that that was a “hollow offer” never intended to be followed through on. The accused never had a gun or access to one―he only boasted of his ability to procure one in order to keep his new client’s business. Still, offering to sell a firearm is enough to bring one within the scope of the trafficking provision of the Criminal Code. After he was arrested and charged, he pled guilty to three counts of trafficking in cocaine, but challenged the charge of weapons-trafficking, arguing that the mandatory minimum sentence on it was unconstitutional because contrary to the prohibition on “cruel and unusual … punishment” in s. 12 of the Charter.

Adopting the test developed by the Superior Court in cases dealing with another mandatory minimum provision, justice Bellefontaine held that he had to decide, first, whether the sentence he would impose absent the mandatory minimum would in fact be less than that minimum, and second, if so, whether it was contrary to s. 12 and could not be saved by s. 1 of the Charter. To the first question, the judge answered that, although the accused’s blameworthiness for this offence was ” at the very low end of the spectrum of offences” since he never actually meant to sell a firearm, in view of his rather lengthy history of criminality, some of it violent, a one-year sentence would have been appropriate. That, of course, is well short of the statutory minimum.

The question of that minimum’s constitutionality must then be dealt with. The test set out by the Supreme Court “is whether [the sentence] is so excessive or grossly disproportionate as to outrage standards of decency.” This test must be applied both to the actual circumstances of the accused and to a reasonable hypothetical case; if the sentence fails it in either instance, it is unconstitutional. As applied to Mr. Lewis, the judge finds that the statutory minimum is disproportionate, but not so grossly as to be unconstitutional, given his “significant criminal antecedents and entrenched devotion to a criminal lifestyle.” The outcome is different, however, for a hypothetical accused in whose case these aggravating circumstances would not be present and who would be, say, trafficking in marijuana rather than cocaine. In that case, says justice Bellefontaine, a three year sentence would be outrageously disproportionate:

[w]hile the words “one year” or “two years” or “three years” slide off the tongue equally easily, they represent large magnitudes of difference to a youthful first offender serving the sentence.  A three year sentence will necessarily be served in the harsh environment of a federal penitentiary with generally older and many hardened violent criminals.  Such a length of sentence and the severe environment it would be served in would effectively eliminate rehabilitation as a sentencing objective when it should be the primary purpose of sentencing for a youthful first offender.  That length of sentence would not be required for specific deterrence.  Such a grossly disproportionate sentence could not be justified on the basis of general deterrence or the protection of the public.

The judge then proceeds to the s. 1 analysis. After referring to another recent mandatory-minimum case, he concludes that

Parliament has imposed a minimum penalty that addresses a worse case offence but which grossly over penalizes the many lesser ways that the same crime can be committed.  The minimum three year sentence does not address the different degrees of moral blame worthiness associated with the different circumstances under which the offence can be committed and accordingly the penalty does not meet the minimal impairment and proportionality tests in R. v. Oakes, [1986] 1 S.C.R. 103 and cannot be justified under Section 1.

The judge briefly considers reading down the mandatory minimum to apply to actual trafficking cases, as opposed to those, such as the one at bar, of offers to traffic, but finally declines to do so. Accordingly, he declares the mandatory minimum provision unconstitutional.

James Morton, a former president of the Ontario Bar Association, argues that this is the wrong decision. “[W]ould reasonable people really be outraged by a fixed minimum sentence of three years for firearms trafficking? Is such a punishment truly grossly excessive? … The gun trafficking minimum sentence is one of those areas where the courts should have exercised more deference to parliament.” I don’t think so. If the constitution invalidates excessive sentences, just like it invalidates, say, laws infringing on freedom of speech, or federal laws invading provincial jurisdiction, then why should courts be more deferential to allegedly unconstitutionally harsh laws than to other potentially unconstitutional ones? What Mr. Morton’s comments do suggest is that it is problematic for courts to make popular feeling, of which they cannot be very good judges, a criterion of constitutionality. I doubt that courts actually take such references to popular feeling very seriously. But if so, they should drop the pretense.

Can the Viceroy Do Wrong?

Radio-Canada reports that Québec’s former Lieutenant-Governor, Lise Thibault, is trying to avoid having to stand trial on charges of fraud, forgery, and breach of trust, by invoking the common law rule that the Queen can do no wrong. As her lawyer puts it, criminal proceedings oppose the sovereign and the subject, and the sovereign cannot possibly sue herself. And since the charges against Mrs. Thibault relate to her time in office as the Queen’s representative in Québec, that’s what would happen if the case is allowed to go ahead.

Mrs. Thibault’s previous lawyer is apparently skeptical of the odds of her motion succeeding. So is professor Henri Brun, from Laval, whom Radio-Canada quotes saying that the principle applied in civil law―75 years ago―but criminal law is different. “As soon as a public officer commits a criminal act, he is no longer acting within his mandate; he cannot hide behind the government, behind the state” (translation mine).

That seems a little too quick. My own (admittedly quick and probably cursory) research shows that the rule that the Queen―or King―can do no wrong is, in principle, one of civil as well as one of criminal law. The Queen can do no criminal wrong, just as she can do no civil wrong. That’s the traditional common law rule, as it stood in, say, Blackstone’s time. But its import is limited in two important ways.

One is that mentioned by prof. Brun – public officers―or, to use older language, the Crown’s servants―can be sued in their personal capacity for committing criminal or tortious acts. But the question, it seems to me, is whether a Lieutenant-Governor is a public officer. This is not an area in which I am very knowledgeable, but I think that the Queen herself is not―she is not a servant of the Crown. That her servants can be criminally liable does not mean that she can. Mrs. Thibault’s argument is that she is in the same position―that she is, as it were, the Queen’s alter ego rather than her servant. I do not know whether that is correct.

The second limitation on the rule that the Queen can do no wrong has come mostly from statutes adopted by all (to the best of my knowledge) common law jurisdictions, allowing lawsuits against the Crown itself as if it were an ordinary person. Courts too have chipped away at the Crown’s immunity. But these developments, both statutory and common law, have concerned civil proceedings, not criminal.  The Criminal Code, for example, does not contain a provision making it applicable to the Crown.

So if the Lieutenant-Governor is more than a mere servant of the Crown, but rather its full-blooded personification, Mrs. Thibault might have a case. If the question has never been decided though, there are surely very good reasons to opt for a restrictive interpretation of what the Crown really is. “The Queen can do no wrong” is an anachronistic rule, and its development over the last century has been a course of consistent narrowing of its ambit.

Indeed, even if there is precedent standing for the proposition that the rule protects the Lieutenant-Governor from criminal liability, the courts might want to overturn it.

Although there is something worrying in courts abolishing defences that shield the accused from liability, which is necessarily retroactive as to the accused in whose case it happens, they have sometimes done it. Two examples are the British decision of R. v. R., [1992] 1 A.C. 599, in which the House of Lords abolished the common law rule according to which a husband could not be guilty of rape against his wife, and the American case of Rogers v. Tennessee, 532 U.S. 541 (2001), in which a sharply divided Supreme Court did away with the rule pursuant to which an accused could not be guilty of murder if the victim died more that one year and one day after the accused injured him, even though the injuries were the cause of the death. The grounds for these two rules disappeared thanks to the evolution of social morality in the first case and of medical science in the second, so that despite a certain queasiness, courts felt themselves justified in changing the common law to reflect these developments.

The common law rule that “the Queen can do no wrong” is arguably ripe for judicial intervention. Not perhaps in civil matters, where legislatures have made their own choices, which courts must respect, especially since state liability has considerable policy implications which courts might not be able to grasp. But in the narrow field of criminal offences committed by viceroys, these considerations do not apply, and there is no reason for the courts to stay their hand.

Drop That Gun! (But Keep the Bullets)

The Superior Court of Ontario has recently delivered its decision in The Queen v. Montague, 2012 ONSC 2300, an interesting case at the intersection of the topics property rights, and gun rights, about which I wrote here and here. In fact, in the latter post, I had mentioned a previous decision in this case, by the Ontario Court of Appeal, rejecting a challenge to the constitutionality of Canadian firearms law based mostly on the English Bill of Rights, 1689. The accused, William and Donna Montague (William, mostly), had been found guilty of a variety of firearms-related offences; they had deliberately let their licences and registration for their firearms lapse. Hundreds of weapons and tens of thousands of rounds of ammunition had been be seized at their residence. Following their convictions, the Crown applied for forfeiture of the weapons and ammunition, worth over $100,000, pursuant to par. 491(1)(b) of the Criminal Code, which provides that firearms and ammunition (inter alia) involved in or which are the subject matter of an offence, if it has been seized, “is for forfeited to Her Majesty and shall be disposed of as the Attorney General directs.”

The Montagues argued that the application of this provision, at least in their circumstances, would infringe their property rights protected by the par. 1(a) of the Canadian Bill of Rights. In their view, forfeiture – that is, a form of expropriation without compensation – should not be imposed automatically and for an offence which is a malum prohibitum rather than a malum in se. In such cases, “due process of law” – which the Canadian Bill of Rights makes a condition on any deprivation of property – requires a judge to have discretion to order that the property subject to par. 491(1)(b) of the Criminal Code be disposed of otherwise than by forfeiture (for example by transferring legal title to it to a trustee who would sell it for the former owners’ benefit). They also raised, in passing it would seem, ss. 7 and 12 of the Charter.

Justice Wright’s reasons are somewhat muddled―indeed it is not quite clear where he is summarizing the Crown’s position and where he is giving his own analysis of the issue. However, his conclusion is that “in a proper case s. 491(1)(b) of the Criminal Code might well be ‘construed and applied as not to abrogate, abridge, or infringe or to authorize the abrogation, abridgement or infringement’  of the accused’s right to enjoyment of property,” as s. 2 of the Canadian Bill of Rights requires. What this seems to mean is not that courts should only apply the Canadian Bill of Rights “in a proper case”―it’s a law after all, and must always be applied―but rather that “in a proper case” a court might exercise its discretion in the way suggested by the Montagues.

I doubt the soundness of this conclusion as a matter of black-letter law. As either Justice Wright or the Crown – unfortunately it is not clear which – notes, a notion of “substantive due process” has not, so far, been recognized in Canadian law. (Though of course “principles of fundamental justice” in s. 7 of the Charter are very substantive indeed. Yet the Supreme Court, in deciding, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that they were so, made much of the fact that the Charter‘s drafters did not use the expression “due process”.)

As a matter of legal philosophy things are a bit more complicated. Jeremy Waldron argues persuasively that hearings and an opportunity to make submissions are a necessary part of any legal regime worth the name. Yet I do not think that this condemns automatic sanctions, be they forfeitures or―in different cases – mandatory prison sentences (such as the mandatory term of life imprisonment which the Criminal Code imposes for murder), on the basis that such sanctions are not properly legal. I do not think that every legal consequence of every fact need be up for argument, so long as the actual existence of the fact is required to be established in accordance with a good legal procedure. Such sanctions might be too harsh, but that is a different story. The claim that the concept of law or the Rule of Law has substantive (and not only formal and procedural) qualifications is very controversial; I, for one, do not buy it.

Be that as it may, Justice Wright refuses to exercise his new-found discretion to save the Montagues from the forfeiture of their firearms:

[41]      The firearms do not present a case where a citizen has unwittingly become embroiled in bureaucratic “red tape”.  They do not present a case where the forfeiture is so overwhelmingly disproportional to the offense that justice cries out for a remedy.

[42]      The firearms present a case where a knowledgeable individual cold bloodedly and with knowledge of the potential consequences deliberately and publicly broke the law. Courts cannot stand by and appear to condone such behavior. Civil Society is entitled to defend itself. Civil disobedience as a political technique is only morally justifiable and thus eligible for the protection of the court where the perpetrator has been denied access to the political institutions of the nation. This was the case at the time of Gandhi. This was the case at the time of Martin Luther King, Jr. They had no alternative other than violence which they both eschewed. Notwithstanding this, both of these individuals understood the needs of society and accepted the consequences of their civil disobedience.

He does exercise it, however, to reject the forfeiture of some of the ammunition, on the ground that it was not actually illegally stored. The jury found otherwise – but that, he says, is because they were not informed of the relevant regulations at trial. I’m not sure about the propriety of this intervention, even assuming that Justice Wright is correct about having the necessary discretion. I do not know enough, really, to form an opinion on this point. If you do, I would love to hear yours.