Someone’s Got to Do It

Was the Supreme Court right to change the law on the right to a speedy trial?

In my last post, I summarized the Supreme Court’s decision in R. v. Jordan, 2016 SCC 27, in which the Court, by a 5-4 majority and over the vigorous disagreement of the concurrence, held that criminals prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by paragraph 11(d) of the Canadian Charter of Rights and Freedoms. (The deadline is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, 30 months otherwise.) This decision, I said, raises a number of significant questions regarding constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. I addressed the first of these questions in my last post, saying that while one aspect of the majority’s decision was clearly at odds with constitutional text, I am not sure that this is true of its main feature, the fixed presumptive ceilings. Here, I address the other questions.

* * *

I will start with the one on which I have a pretty firm view ― that which concerns the court’s decision-making process. The concurrence castigates the majority for having imposed its presumptive “ceilings” ― and thereby transformed long-standing understanding of paragraph 11(b) ― without having been asked to do so by the parties and without adversarial debate. It adds that there was limited evidence in the record about both the current state of affairs ― which the majority characterized as “a culture of delay” ― and about the potential consequences of the new approach. I think that these criticisms are justified.

There is no question that the majority’s decision is a fairly radical departure from the existing law. Indeed, the majority is clear that it wants to change the way all the actors in the criminal justice system operate, and that governments may well have to spend more to meet their new constitutional obligations. Whether or not this new departure is a good idea, and whether or not it is consistent with the Court’s constitutional role ― questions to which I will come shortly ― it should not have been taken lightly. And while I have no doubt that the majority did consider it seriously, I do not think that it has done enough. Given the magnitude of the change it was considering, and the fact that it was not canvassed by the parties in argument, the Court should, it seems to me, have re-opened the argument and invited the parties to make submissions that would have addressed its concerns. Indeed, I wonder if the Court could have invited Attorneys General, only one of whom (Alberta’s) intervened, to participate in the debate.

Alternatively, the Court could have decided the case on the basis of the existing framework (perhaps modified as suggested by the concurrence), and suggested ― in its reasons ― that it would, in a future case, be willing to entertain submissions on whether that framework should be overhauled in the future. This would of course have delayed the implementation of any proposed changes, but it would also have allowed for any decision on whether these changes are a good idea to be made on the basis of a record put together and tested by the parties, and not only of the majority’s own limited research.

Speaking of the the research, Michael Spratt points out that the majority “did not do what every elementary school student is taught to do — show his or her work.” He calls the majority’s framework “a product of judicial alchemy and … entirely unprincipled.” I would not go this far, but an opinion that doesn’t show its authors’ work makes them vulnerable to such charges. As I said here after the Court’s decision in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, “I am happy to assume that the Court did its work, but others may not be, and neither they nor I should have to take that on faith.” Sure, the reasons in Jordan are very long, but the majority could have produced some sort of annex to explain the results of its research much better than it has done. It is a question of transparency, and arguably even simple respect for the public over which the Court is exercising a considerable power.

* * *

Put these (significant) concerns about process to one side, and the question whether the majority was right to decide the case the way it did gets much trickier. Admittedly, I am not especially well qualified to answer it, so take what follows with a generous helping of salt. And admittedly, more qualified people have been quite critical of the majority decision in Jordan. Mr. Spratt is especially scathing, arguing that “[t]he Supreme Court’s latest decision pays lip service to the constitution while doing little to improve the pace of Canadian justice.” In a very well argued interview with Jim Brown, on the CBC Radio’s The 180, my friend Joanna Baron has defended “incrementalism,” in preference to the majority’s approach that risks allowing too much time for trials in provincial courts, and not enough in the superior courts. Lauren Heuser, in a National Post op-ed, calls “the ceiling on trial times … worryingly firm,” especially in that it prevents courts from making exceptions on account of the “the depravity of an offence.” She writes that “[m]ore than a few people will be uncomfortable when suspected perpetrators of serious crimes walk free on perceived legal technicalities.”

Ms. Heuser’s suggestion, at least, is easy enough to dispose of. The Charter does not speak of “a right to be tried within a reasonable time, except for those accused of depraved offences.” The Jordan majority is quite right to say that only the complexity of the legal or factual issues, rather than the gravity of the charge, can justify a prosecution taking longer to conclude. Those who think otherwise need to amend the constitution.

But the underlying critique ― that (relatively) firm ceilings are not an appropriate response to the problem of delay due to the infinite variety of the cases to which they will be applied is serious. I do not know nearly enough to reject it. But I would like to raise a question for those who endorse it. It is, quite simply this: what makes you think that a few tweaks to an approach that appears to have thoroughly failed are enough? Ms. Heuser writes that “[w]hile one can question whether this ruling was the best way to light a fire under Canada’s court system, few would dispute that a fire needed to be lit.” The Jordan concurrence does not seem to address the majority’s claim that the system suffers from a “culture of delay” directly ― which seems like a concession. The concurrence does argue that the majority’s radical approach is unnecessary, because the case isn’t even a close one under the old one, at least as modified in its opinion. But there remains the fact that both the trial court and the unanimous Cour of Appeal thought that the delay which the concurrence thinks is clearly unconstitutional was just all right. I share Ms. Baron’s general preference for incrementalism, but I’m not convinced that the time for incrementalism on this issue has not run out.

Now, that doesn’t mean that what the Supreme Court did was right. Just because something must be done, and x is something, it doesn’t follow that x must be done. But what other options were there? Mr. Spratt agrees that “[c]hange is indeed needed,” but insists that “we should hold little hope that a cynical judgment from the Supreme Court will change anything.” Well, maybe ― though I think it’s unfair to describe the majority opinion in Jordan as “cynical,” despite its flaws, and would be unfair even the majority is ultimately wrong. But while it is easy enough for a blogging defence lawyer to rail against the practices of police and prosecutors, and the policies of governments, and accuse the courts of complicity, such tirades, even if justified, hardly answer the question of what a court ought to do when it does recognize the existence of a problem, even if belatedly.

* * *

Sometimes, though, the answer to the question of what one is to do even in the face of a situation crying out action, is “nothing.” The courts’ role, like that of other institutions, is limited. The Jordan concurrence has suggested that numerical ceilings should only be imposed, if at all, by legislation. Ms. Baron is also of that view. The concurrence has also criticized the majority for overturning settled precedent. So has Ms. Heuser. Both these critiques amount to a contention that the majority overstepped the proper judicial remit. I am not persuaded of this.

I agree that the majority’s decision is essentially legislative. The fact that it felt the need to lay out a transitional framework underscores this ― transitional provisions are common in statutes, but almost unheard-of in judicial decisions. But that alone isn’t enough to show that it is not appropriate for a court to make such a decision. Some judicial decisions are essentially legislative: one that comes to mind is Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, in which the Supreme Court imposed a hard cap on the amount of damages that can be awarded for pain and suffering in personal injury cases. Pace such legal philosophers as Ronald Dworkin and F.A. Hayek, courts do on occasion introduce new rules of law that cannot be derived in any straightforward way from either legal principles or from the practices prevalent in society, and most people seem prepared to live with these decisions. Legislatures often accept them even when they could overturn them.

So it’s not enough to say that the Court effectively made new law and thus usurped the legislatures’ prerogative. And of course, even if the legislatures had enacted statutes to impose ceilings on delays in the justice system, the courts would still have the last word on these statutes’ constitutionality. Ruling on ceilings in the context of a constitutional challenge to a statute is almost certainly better from a process standpoint, as such a case would likely feature a substantial record of the sort that was missing in Jordan. But in terms of institutional legitimacy, it would not be that different. Indeed, such a ruling would come with complications of its own, because it would confront the courts with very difficult questions under section 1 of the Charter, which are avoided when, as in Jordan, the constitutional challenge is not aimed at a rule or regulation ― most fundamentally, about whether delays that are intolerable if produced by a “culture of delay” can be saved as “reasonable limits” to the section 11(b) rights, under section 1, by a legislative ratification.

Ultimately, though, the issue is not whether, in a perfect world, the legislatures would act to limit delays, and how the courts should respond to such legislation. Rather, the issue is that legislatures have done nothing at all to remedy the problem of unconstitutional delays. If, the lack of evidence in the record notwithstanding, it is the case that delays are endemic, and that there is a “culture of delay” ― which no one denies ― the issue is the existence of widespread and ongoing violations of the constitutional rights of thousands of people. These violations have to be remedied. Sure, it’s not the courts’ job to pursue policy objectives to which the elected officials fail to attend. But we’re not talking about mere policy here. Sure, courts should beware of disregarding procedural constraints because doing so undermines the Rule law. But doesn’t systematic disregard for the constitution undermine the Rule of Law too? If the governments will not bring themselves in conformity with their constitutional obligations, shouldn’t the courts try to make them? And if the courts do not, who will?

* * *

For all that, I am not certain that the Supreme Court got Jordan right. Its interpretation of the Charter is not beyond question; its procedural careless is disturbing; its chosen solution to what is admittedly a grave problem may be a bad one; and perhaps, all things considered, it should not have endeavoured to do more than mitigate that problem’s worst manifestations. But it is far from clear that this is so. There is more to be said in defence of the majority opinion in Jordan than most observers seem to think. Getting the government to comply with constitutional obligations is hard ― but someone’s got to do it.

Keeping Time, Time, Time

The Supreme Court changes the meaning of the right to be tried within a reasonable time

A couple of weeks ago, the Supreme Court issued a very important, and fairly radical, decision on the “right … to be tried within a reasonable time,” which paragraph 11(b) of the Canadian Charter of Rights and Freedoms grants to “any person charged with an offence.” In R. v. Jordan, 2016 SCC 27, a divided Court overturned precedent and introduced presumptive caps on the amount of time that can elapse before a trial no longer takes place “within a reasonable time.” This decision raises significant questions about the judicial role, especially in the face of inaction by other branches of government.

Mr. Jordan, along with a number of others, had been charged with multiple drug offences. His trial concluded a little over four years later, two months of which he spent in prison, and the rest under restrictive bail conditions. The trial judge found that while Mr. Jordan was responsible for four months of that delay, the prosecution was responsible for two more, while the rest ― more than two and a half years ― “was attributable to institutional delay” [15]. However neither the trial judge nor the Court of Appeal accepted Mr. Jordan’s argument that the delay was an infringement of his rights under par. 11(b) of the Charter.  This was notably so because Mr. Jordan was facing other charges and serving a separate sentence, with conditions more or less equivalent to those of his bail, while waiting for his trial, meaning that his liberty would have been restricted even without the delay in this case.

* * *

The majority opinion, co-written by Justices Moldaver, Karakatsanis, and Brown, with whom Justices Abella and Côté concur, treats Mr. Jordan’s case as symptomatic of “a culture of delay and complacency towards it” [29]. The existing rules for the application of par. 11(b), which involved assessing the reasonableness of the delay in a given case in light of its length, causes, and impact on the accused are too complicated and vague, causing “its application [to be] highly unpredictable” [32] and subjective. A focus on the prejudice the delay causes to the accused misses some of the less tangible harms delay produces, not least those to the administration of justice as a whole, and devalues the right to a speedy trial. Finally, the existing rules are “designed not to prevent delay, but only to redress (or not redress) it” [35]. The “culture of delay” must change,

[a]nd, along with other participants in the justice system, this Court has a role to play in changing [it] and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time. [45]

The way in which the majority wants to play that role is by changing the applicable rules. As mentioned at the outset, the majority opinion introduces

ceiling[s] beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry), [46]

excluding any delay for caused or waived by the defence. The Crown can still show that exceptional circumstances outside of its control have arisen and that they explain ― and excuse ― a case taking longer than these timeframes, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but to do so they will need to demonstrate not only that the delay is “markedly” greater than reasonable, but also that they diligently sought to have the case heard sooner. (This test is reminiscent of that which Justice Moldaver applied in the Court’s recent decision in R. v. Vassel, 2016 SCC 26.)

The majority justified its decision by asserting that

[a] presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. [50]

In the majority’s view, its approach is simpler than the existing rules, and eliminates the undue focus on prejudice to the accused. The majority acknowledges that even the ceilings it imposes are “a long time to wait for justice,” but insists that they “reflect[] the realities we currently face,” [57] ― as reflected, it seems, in “a qualitative review of nearly every reported s. 11(b) appellate decision from the past 10 years, and many decisions from trial courts” [106] ― while cautioning that the Court “may have to revisit these numbers and the considerations that inform them in the future.” [57] Ultimately, the majority hopes that its approach “will help facilitate a much-needed shift in culture,” [112] including

by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible, and will be treated as such. [117]

In its conclusion, the majority adds that “[g]overnment will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.” [140]

Applying its approach (including a transitional framework for cases already in the system prior to its ruling) to the facts of Mr. Jordan’s case, the majority finds that the delays that afflicted it were unreasonable. In the process, it castigates the Crown for not having had a plan for bringing the matter to trial expeditiously, and for doing “too little, too late” when it became aware of the problem.

* * *

The Chief Justice and Justices Cromwell, Wagner, and Gascon do not disagree with this conclusion. They too are of the view that the delay in this case was unreasonable. However, Justice Cromwell’s concurring opinion is sharply critical of the majority’s approach to par. 11(b), which it calls “both unwarranted and unwise.” [254] While it accepts that some revisions to the current framework are in order, it rejects the imposition of fixed ceilings on acceptable delays.

Drew Yewchuk summarizes the concurrence’s approach and exposes some difficulties with it in a post at ABlawg. Here I will briefly sum up Justice Cromwell’s critique of the majority opinion. Justice Cromwell argues that the majority’s approach will not be as simple to apply as the majority hopes, because “[t]he complexity inherent in determining unreasonable delay has been moved into deciding whether to ‘rebut’ the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases.” [254]

As a matter of principle, the reasonableness of pre-trial delay “cannot be captured by a number; the ceilings substitute a right for ‘trial under the ceiling[s]’ … for the constitutional right to be tried within a reasonable time.” [147] Indeed,

The proposed judicially created “ceilings” largely uncouple the right to be tried within a reasonable time from the concept of reasonableness which is the core of the right. The bedrock constitutional requirement of reasonableness in each particular case is replaced with a fixed ceiling and is thus converted into a requirement to comply with a judicially legislated metric. This is inconsistent with the purpose of the right, which after all, is to guarantee trial within a reasonable time. Reducing “reasonableness” to a judicially created ceiling, which applies regardless of context, does not achieve this purpose. [263]

No foreign jurisdiction imposes numerical guidelines for speedy trials either. As for the majority’s approach to cases where trial is completed with the 18- or 30-month limit, it is “a judicially created diminishment of a constitutional right, and one for which there is no justification.” [264]

Each case must be decided separately, based on its own circumstances ― including, to some (limited) extent the prejudice to the accused, as well as society’s interest in the prosecution. The creation of definite ceilings is a legislative task, and it should be accomplished, if at all, by legislation. Besides, there is no evidence to support the majority’s approach, and it was neither put forward by any of the parties nor “the subject of adversarial debate.” [147] Nor was the majority’s assessment of the jurisprudence subject to scrutiny by the parties. The impact of its decision is unknown, but “[f]or the vast majority of cases, the ceilings are so high that they risk being meaningless,” thus “feed[ing] … rather than eliminat[ing]” [276] the culture of delay that the majority is concerned about, while for a small but significant minority, the ceilings risk proving too rigid, leading to stays being entered in the most important prosecutions.  

* * *

There are many questions to be asked about this case. They concern the constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. Since this post is already very long, I will only briefly address the first one here, and put off the other three to a separate discussion, which I hope will follow… in a reasonable time.

What I mean by the constitutionality of the majority’s decision is its consistency with the Charter’s text. The concurrence effectively argues that the constitutional text requires treating reasonableness as a standard and prohibits translating it into a bright-line rule. (Notice, though, that Justice Cromwell doesn’t quite put the point in this way: he says that the majority’s approach is inconsistent with “purpose of the right” ― consistently with the Supreme Court’s tendency to treat constitutional text as secondary, at best, to the “purposes” it is deemed to implement.) The majority, it seems to me does not make much of an effort to address this argument.

I am not sure who is right, to be honest. The idea of reasonableness does indeed normally refer to a standard, not a rule. But ― precisely for that reason ― the constitutional text that entrenches this standard calls for judicial elaboration or, as modern originalists would say, construction. In other words, the constitutional text itself does not give answers to the questions that arise in the course of adjudication. It must be supplemented by judicially-developed doctrines. The question is whether the courts can make numerical rules part of their doctrines. (And it really is only part; the majority is probably right to say that the concurrence somewhat overstates the degree to which the test a numerical one.) Or is it simply inconsistent with the meaning “reasonableness”? Again, I am not sure, but I do not think that the matter is as clear as the concurrence suggests. The fact that reasonableness requirements have not been construed in this way so far, in Canada or abroad, is significant, but hardly dispositive. It really is too bad that the majority does not address this issue.

In my view, however, the concurrence is pretty clearly right that the majority’s approach to cases that fall below its ceilings is a departure from constitution text. The text provides a right “to be tried within a reasonable time” ― not a right “to be tried within a time that is not markedly unreasonable provided that one has been diligent.” Presumably the majority introduce these additional requirements in order to incentivize defence counsel to contribute to the cultural change which it seeks. But while understandable, this motivation cannot justify an obvious inconsistency with the constitutional text.

That said, the issues of whether there can and ought to be a “ceiling” above which the burden of proof shifts to the Crown, and just what ought to happen below that ceiling, are distinct. It may be that the majority is right about the first even if it is wrong about the second.

All right. That’s quite unreasonable already ― for now.

Churchill on Prison

Winston Churchill’s thoughts on his time as a prisoner (of war)

I’m not sure, and am too lazy to verify, whether if Winston Churchill is the only head of a Commonwealth government to have been a prisoner; but there cannot have been many. (UPDATE: As my friend Malcolm Lavoie points out to me, Nelson Mandela is another example. It is rather stupid of me to have forgotten that and, as you will presently see, quite ironic.) Churchill did not long stay in captivity ― he escaped the converted school where he (a war correspondent at the time) and British officers taken prisoner during the early days of the Boer war were held ― but the experience still marked him, and he wrote about it in his memoir My Early Life, written in 1930:

[T]he whole atmosphere of prison, even the most easy and best regulated prison, is odious. Companions in this kind of misfortune quarrel about trifles and get the least possible pleasure from each other’s society. If you have never been under restraint before and never known what it was to be a captive, you feel a sense of constant humiliation in being confined to a narrow space, fenced in by railings and wire, watched by armed men, and webbed about with a tangle of regulations and restrictions. I certainly hated every minute of my captivity more than I have ever hated any other period in my whole life. (273)

In My Early Life, Churchill says relatively little about his philosophy, and almost nothing about his political career in the 1910s and ’20s, focusing mostly on telling the story as he lived it at the time of the events. However the topic of imprisonment prompts a rare digression:

Looking back on those days, I have always felt the keenest pity for prisoners and captives. What it must mean for any man, especially an educated man, to be confined for years in a modern convict prison strains my imagination. Each day exactly like the one before, with the barren ashes of wasted life behind, and all the long years of bondage stretching out ahead. There in after years, when I was Home Secretary and had all the prisons of England in my charge, I did my utmost consistent with public policy to introduce some sort of variety and indulgence into the life of their inmates, to give to educated minds books to feed on, to give to all periodical entertainments of some sort to look forward to and to look back upon, and to mitigate as far as is reasonable the hard lot which, if they have deserved, they must none the less endure. (273-74)

This is, I think, something that those in charge of prison policy at various levels would do well to consider ― all the more since they, unlike Churchill, will typically lack the experience, however short, of the shoe being on the other foot.

And speaking of books for a mind to feed on, whether or not the body that houses it is in prison or at large, one can find worse than My Early Life. Though it is, no doubt, somewhat politically incorrect by our standards, the events it tells are fascinating; the author’s philosophical observations, though infrequent, are sharp; there is a somewhat wicked pleasure in reading it while knowing what Churchill did not know when it wrote it ― the events that would made him one of history’s great heroes, instead of a minor footnote; and last but not least, it is brilliantly written and thus simply a joy to read.

Expanding Hatred Again

Don’t expand the Criminal Code’s hate speech provisions. Repeal them!

This morning, the federal government has introduced a new bill in Parliament, C-16, that would, if enacted, add “gender identity” and “gender expression” to the definition of “identifiable grounds” used in the advocacy of genocide and hate speech provisions of the Criminal Code. (It would also make them prohibited grounds of discrimination under the Canadian HumanRights Act, but I am not concerned with that here.) Fighting transphobia is a worthy cause, but even in the service of a worthy cause, not all the means are appropriate. As I argued when the previous government introduced its own expansion of the Criminal Code‘s hate speech provisions, this one is not. Here is what I wrote then:

I have argued, in a number of posts (collected here), that prohibitions on hate speech are useless, both because they only punish what I described as “the rear-guard of hatred” and because the truly noxious speech is that of sophisticated and influential politicians who can easily evade the narrow prohibitions of the criminal law, and that they are dangerous, because of their chilling effect and vulnerability to abuse. Needless to say, the greater the scope of the hate-speech provisions of the Criminal Code, the greater their chilling effect and potential abuses are.

I also said that while promoting hatred or advocating genocide on the newly-added grounds is every bit as immoral as on those that were already in the Criminal Code,

criminal law does not and should not perfectly track morality. Not everything that is morally wrong, even deeply wrong, should be criminalized. Hate speech is one of these things.

This remains the case today. The only thing I would add is that the ongoing expansion of the hate speech provisions suggests that there is no limiting principle that would prevent future governments from extending them further and further. Any group that succeeds in making its voice heard in the political arena will understandably demand the same “protections” that others already enjoy, however illusory these “protections” actually are, and the scope of the hate speech provisions will go on expanding. The only way to stop this process is, I believe, to acknowledge that the criminalization of hate speech is inappropriate in a free society, and must be renounced.

Bullshit in Sentencing

An ostensibly minimalist, and an unsatisfactory, decision from the Supreme Court

In R. v. Safarzadeh-Markhali, 2016 SCC 14, decided last month, the Supreme Court stuck down a provision of the Criminal Code that prevented sentencing judges from crediting more than the time the offender actually served in pre-trial detention against the sentence imposed when the offender had been denied bail was a past criminal record. The Supreme Court thus upheld the decision of the Ontario Court of Appeal in this case ― though not that court’s reasoning. Just like that ruling, the Supreme Court’s will likely to be seen as part of the judicial fightback against the late Conservative government’s “tough on crime” policy ― yet the Chief Justice’s opinion for the unanimous court is, on its surface anyway, a remarkably narrow one and, if anything, good news for anyone considering pursuing a “though on crime 2.0” project in the future.

There seems to have been no real dispute that denying judges the discretion to give enhanced credit to offenders who had been refused bail due to a past conviction resulted in deprivations of liberty due to longer prison sentences. It thus engaged section 7 of the Charter, which protects the right not to be deprived of one’s liberty except “in accordance with the principles of fundamental justice.” The question is, which principle of fundamental justice, if any, is at stake here.

The Ontario Court of Appeal held that the relevant principle is that of proportionality in the sentencing process. The Court itself articulated this principle, according to which the sentencing process cannot be made contingent on irrelevant factors, and elevated it to the rank of a principle of fundamental justice. Somewhat confusingly, the Chief Justice only addresses this theory in a passage that feels like an appendix, at the very end of her reasons. In her view, the Court of Appeal’s approach is inconsistent with the idea that “the constitutional standard against which punishment is measured is and remains gross disproportionality” [73] under section 7 of the Charter, as well as the prohibition on cruel and unusual punishment in section 12. That’s probably true ― when I commented on the Court of Appeal’s decision, I described it an example of legal contortionism by a court boxed in by restrictive precedents. The question, though, is whether these precedents are enough.

For the Chief Justice, they are. She says that the relevant principle of fundamental justice is the one that proscribes overbreadth. Overbreadth, as the Supreme Court has defined it, is the vice of a law that applies to situations that are not related to its purpose, as well as to those that are. While the law is only overbroad as to those cases that are not related to its objectives, an overbroad law that deprives people of their liberty will be struck down as a whole, and not merely read down to fit its purposes more exactly.

The overbreadth analysis is obviously dependent on the analysis of the impugned law’s or provision’s objective. In the absence of any clear indicia of purpose in the statutory text itself, the Chief Justice turns mostly to various statements made in the House of Commons by the Minister responsible for the legislation. She acknowledges that

[s]tatements of purpose in the legislative record may be rhetorical and imprecise. Yet providing information and explanations of proposed legislation is an important ministerial responsibility, and courts rightly look to it in determining the purpose of a challenged provision. [36]

The trouble, though, is that the Minister named a quite a number of different objectives when explaining the provision at issue to Parliament, ranging from the vague and symbolic to the more concrete. There was the protection of society from violent offenders, the rehabilitation of said offenders through prison programmes which is supposedly promoted longer prison terms, there was retribution and punishment too, and preventing offenders from “benefitting” from having been kept in prison. The Chief Justice concludes, however, that

the legislative purpose of the total denial of enhanced credit for pre-sentence custody to offenders who are denied bail because of a prior conviction is to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs. [47; emphasis removed]

All the other purposes mentioned by the minister are merely “peripheral.” [47]

With this purpose in mind, the Chief Justice then finds that because the denial of enhanced credit “catches people in ways that have nothing to do with enhancing public safety and security,” [52] it is overbroad. Notably, the rule applies to offenders who do not fall in the “violent” and “chronic” categories as well as to those who do. For the same reason, the denial of enhanced credit is not “minimally impairing” and therefore cannot be justified under section 1 of the Charter.

As I said at the outset, this is ― ostensibly anyway ― a minimalist decision that is in effect limited to the facts of this case, and more precisely to the legislative record that was in evidence. If the Minister’s statements had been different ― if, for instance, they had emphasized the need for retribution more than the supposed effectiveness of longer imprisonment in rehabilitating habitual or violent criminals ― the Chief Justice would have been hard pressed to find that the denial of enhanced credit for time served was overbroad. A future government bent on pursuing a “tough on crime” agenda need only be more forthright to get its way ― not less punitive. Even more disturbingly, a future Supreme Court could easily emphasize different aspects of a similar legislative record, dismiss the nice-sounding stuff about rehabilitation as “peripheral,” and uphold an identical law.

Would it, though? In commenting on the Court’s decision in Safarzadeh-Markhali over at Policy Options Perspectives, Michael Plaxton invokes Harry Frankfurt’s idea of “bullshit” ― a statement made without regard for its truth or falsity. Much political discourse ― including, one suspects, ministerial statements made in introducing legislation in the House of Commons ― are bullshit in this sense, but prof. Plaxton suggests that the Court’s approach just might force Ministers to be more careful about what they say, which would “have welcome implications for democratic discourse.” (Prof. Plaxton worries, though, that the Court may also be forcing political discourse into levels of subtlety beyond the average voter’s comprehension.) But, with all due respect to its eminent members, I cannot help but wonder if the Court itself is not guilty of spreading bullshit ― still in the Frankfurt sense of course ― when it purports to identify the true intention of Parliament in the panoply of justifications offered by the Minister. That is to say, I wonder whether the Court actually cares whether the intention on which it settles is the one that animated the political actors, or whether it is content to attribute it to them regardless.

The reason I am asking such impolite questions is that the Chief Justice’s analysis of the legislative purpose strikes me as rather strained. The Chief Justice begins by saying that “[t]he title of the [Truth in Sentencing Act, which added the impugned provision to the Criminal Code] suggests that the evil to which it is directed is opaqueness in the sentencing process” [32] ― but surely it does not. What “truth in sentencing” is concerned with is not so much opaqueness as the fact that offenders ended up spending less time in prison than they were sentenced to, due to judges giving enhanced credit for pre-trial detention. The Act, accordingly, limited this credit in various ways. The Chief Justice, it seems to me, tries as best she can to avoid engaging with Parliament’s real motivations. Ultimately, she divines legislative intent from ministerial statements that allow her to strike down the impugned provision while telling the politicians that they merely chose the wrong means to laudable ends, and not that their ends themselves were unacceptable. But I, for one, am not convinced that she believes any of this. And if so, then the Chief Justice’s ostensible minimalism is merely a smoke-screen.

Yet as in other instances, adopting a narrow approach designed to minimize potential conflict with Parliament has its costs. The Truth in Sentencing Act was itself a rather remarkable instance of bullshit. As the Ontario Court of Appeal pointed out in its decision, it could result in offenders with similar criminal histories serving different prison terms depending on things such as the strength of their sureties, and even in people foregoing applying for bail in order to avoid being refused on the basis of their criminal histories and being denied enhanced credit as a result. This is not what “truth in sentencing” means to any fair-minded person ― but of course the government that introduced that legislation didn’t care. While the way in which it did so was questionable, the Court of Appeal at least addressed these issues directly. The Supreme Court does not even try. It leaves in place the jurisprudential framework that forced the Court of Appeal into legal contortionism, and wades further into the minefield of relying on legislative history without addressing the well-known issues with this practice, which Benjamin Oliphant summarized in his own Policy Options Perspectives post. As I already said here, “the problem with leading from behind is that one has trouble seeing ahead.” The Supreme Court needs to think about this before engaging in any more minimalism, real or feigned.

Down with Hypocrisy, Again

Over at Democratic Audit UK, Mollie Gerver has an interesting post arguing that the European Union should decriminalize people smuggling ― that is, helping consenting individuals to cross borders which they lack permission to cross, in exchange for payment. (Consent is very important here: it’s what distinguishes “smuggling” from “trafficking,” the moving of people by force or fraud.) Having once written that Canada’s anti-smuggling laws are a form of organized hypocrisy, I agree. If anything, I would go even further than Ms. Gerver.

Ms. Gerver points that it is not illegal for a refugee to pay a smuggler, or to come to a country where he or she applies for protection. Even those whose applications for refugee status are denied are only deported, not punished. Smugglers, by contrast, face stiff criminal sanctions if they are caught, and this, Ms. Gerver explains, creates all sorts of perverse incentives. For example, smugglers “require extensive intelligence information to evade border control officials, which is often only possible by joining forces with those involved in arms trading and human trafficking networks.” Even worse, “[t]o avoid getting caught and arrested, smugglers often also take violent actions against migrants and refugees.” Moreover, because they face criminal sanctions whether or not they endanger the people they transport, smugglers are incentivized to carry as many people as they can, regardless of the risks, so as to maximize the profits.

Ms. Gerver proposes that smuggling be decriminalized, and that smugglers only face criminal punishment actions that are independently wrong, whether abuse or endangerment of the migrants, arms trafficking, or even “fraud if they fail to warn migrants and refugees about the risks of the journey.” In this way, smugglers will actually have an incentive to avoid, not to engage in, these sorts of behaviour. In Ms. Gerver’s view, such an approach would not be inconsistent with turning potential refugees away if they are intercepted before reaching safe haven, and generally with trying to reduce the number of those who reach their destinations and claim asylum. Indeed, she believes that “smuggling may also be easier to stop if decriminalised,” because smugglers might become “less nervous about being caught” once they know that they will not face sanctions if they are.

I’m not sure quite how seriously Ms. Gerver means her suggestions that decriminalization would be a way of reducing the number of refugees able to claim asylum in the West. I doubt that the suggestion is correct, because lowering the price of smuggling to those who engage in it will also lower the price their clients have to pay, and thus attract more of them, many more, I suspect, than would be stopped en route. Ms. Gerver might not think that this would be a good thing. But I certainly do. Indeed, I now believe, as I did not when I wrote the post linked to above, that states have no right to keep out any migrants, whether they are fleeing natural disasters, war, political persecution, or misery caused by the same sort of bad government that makes natural disasters into humanitarian catastrophes and causes wars and persecution. But you need not share this view to think that allowing more people who are genuine refugees as the term is generally understood to come to safety would be a good thing.

Indeed, you do not even need to believe that to want to change a policy that makes it more likely that refugees will be victimized by smugglers. To repeat, this policy is one of rank hypocrisy. We say that we welcome refugees, but actually we put barriers that not only make it difficult for them to come, but ensure that those who make the attempt are more likely to suffer or even die. That this barriers are invisible makes it worse. Ostensibly we protect vulnerable people from exploitation. In reality, as I argued in my earlier post on this topic, and as Ms. Gerver confirms, we create incentives for the smugglers to exploit them. To the somewhat more specific points Ms. Gerver makes, I would add the following, more general, one that I made in my earlier post:

[a]s with drugs, illegality ― created by the state ― reduces the number of willing sellers and increases the risks for which each of them wants to be compensated out of the price he charges. … But it seems quite wrong for the state to manufacture the conditions that give rise to the appearances of exploitation and then blame, and even criminalize, others for that exploitation.

The same situation prevailed with sex work under the legislative framework that the Supreme Court struck down in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. As I wrote in commenting on that decision, exploitation of sex workers by pimps is no small part a predictable consequence of the illegality of “living off the avails” of prostitution:

no law can make demand for protection of and assistance to prostitutes vanish. By criminalizing the supply that emerges to meet this demand, law makes supply more scarce, and therefore more costly, both in purely financial terms, and in the overall exactions the suppliers impose on their customers. An illegal activity inevitably attracts more “tough” ― read, abusive ― people than a legal one would.

Parliament was forced to change the way it regulated sex work after Bedford, but the new legal framework is, if anything, even more similar to that which applies to people smuggling, both in form and in effect. Only one side of the consensual  transaction, the one allegedly exploiting the other, is criminalized (in the case of smuggling, the supply; in the case of sex work, the demand), but the putative victim is endangered, and probably also stigmatized, as a result. It is hard to avoid the suspicion that, as with sex work and other activities considered reprehensible, regulations that ostensibly protect people from their ill-effects are actually meant to scare or disgust them out of engaging in these activities; or at least that, even if this is not the intent, the supporters of such laws really do not mind if they this effect.

The title of my comment on Bedford was “Down with Hypocrisy.” I still feel that way about the criminalization of sex work ― or of the demand for sex work. And I still feel that way about the criminalization of human smuggling ― or, to describe it less hypocritically, of remunerated assistance to people crossing borders that states had no business preventing them from crossing in the first place. Hypocritical laws enacted with, at best, a reckless disregard for the misery they cause do not belong on the statute book of any decent polity.

H/t: Michael Plaxton

The Fog of Law

The Prime Minister has announced that, should his government return to power after the election, it will seek to enact legislation criminalizing the travel to some parts of the world, considered to be hotbeds of terrorism. Both the list of areas in question and the details of the legislation are sketchy at this point, so it is hard to say anything definitive about this proposal. Craig Forcese considers both the merits of this proposal and its constitutionality, on the basis of what little is known about it, and concludes that while some version of a travel ban would be both a good idea and constitutional, Mr. Harper’s proposal, which would apparently include exceptions ― subject to a reversed burden of proof ― for journalists, humanitarian workers and, maybe, for people go to the prohibited zones to fight terrorists as well, might be neither.

Unlike prof. Forcese, I’m not qualified to speak to the merits of Mr. Harper’s idea. However, I want to venture some thoughts about its constitutionality. Overall, my views are similar to prof. Forcese’s. I think that some form of travel ban may well be constitutional, though the exceptions make defending the proposal put forth by Mr. Harper more difficult to defend. In this post, I will consider four Charter rights potentially implicated by the proposal, as well as the arguments that might justify limiting these rights under s. 1 of the Charter.

The most obvious place to start in assessing the constitutionality of a travel restriction is surely section 6(1) of the Charter, which states that “[e]very citizen of Canada has the right to enter, remain in and leave Canada.” Prof. Forcese says that “it is not clear … that the s.6 right to enter and leave Canada includes ‘the right to leave Canada and go to a war zone of your choosing’.” I would put the same thing even more strongly: the constitutional text speaks of a “right to … leave Canada” ― not a right to go anywhere in particular. I suspect that what inspired its entrenchment (and, earlier, the enshrinement of international mobility rights in the International Covenant for Civil and Political Rights) was the practice of totalitarian (especially Communist) regimes to prevent their citizens from leaving the country whether permanently or even temporarily ― or, having allowed a person to leave, of stripping him of citizenship and thus preventing his return. A targeted travel ban is very far from that sort of thing. It is arguable, I suppose, that the longer the list of prohibited destinations, the more illusory the right to leave the country becomes. But for now that is a theoretical concern. In my view, the government would have a very strong argument on this point. That said s. 6(1) has not received much attention from the Supreme Court, except in the context of extradition and the transfer of Canadians imprisoned abroad back to Canada. Its contours in other circumstances remain to be drawn.

A related argument involving a constitutional right that has received even less attention from the Supreme Court is that based on the freedom of the press protected by section 2(b) of the Charter. Prof. Forcese suggests that “the reverse onus ― requiring a journalist to prove they are journalist to avoid going to jail for travelling to a designated zone ― could also raise novel new s. 2(b) freedom of the press issues.” Indeed, while there is little if any jurisprudence to rely on for such a claim, it would be a plausible one if, as Benjamin Oliphant has proposed in a fascinating article, the freedom of the press were interpreted as protecting newsgathering activity. A journalist travelling to a designated area to collect information in order to inform the Canadian public of the goings-on there would, quite clearly, be engaged in newsgathering, and thus in a constitutionally protected activity. (Mr. Oliphant suggests excluding “inherently harmful activity” from the scope of this protection, however; I suspect that travel, even to a terrorist-infested warzone, wouldn’t qualify as “inherently harmful,” but it’s not entirely clear to me how that might pay out.)

It is worth noting the negative implications of this argument, however. “Freedom of the press” is explicitly protected by the Charter. “Humanitarian work,” “fighting terrorists,” or whatever other activity people might want to engage in in the areas subject to the travel ban are not ― even in Canada, never mind abroad. To me, this seems to strengthen the case against reading s. 6 so as to include the right to travel to some specific foreign destination for these purposes. Nor would this right be protected by the liberty guarantee of s. 7 of the Charter. While the Supreme Court has interpreted this guarantee to encompass “fundamental personal choices,” it seems very unlikely that it would treat an occupational choice, even a humanitarian one, as fundamental enough. That said, Mr. Harper’s travel ban proposal would still implicate s. 7 if penalties for breach include imprisonment. I will come back to that point shortly.

First though, I want to discuss the presumption of innocence, entrenched in section 11(d) of the Charter, and the possibility of justifying an infringement under s. 1. Prof. Forcese points out that “while the jurisprudence under [s. 11(d)] and its application to defences is less than a paragon of clarity, it is still a meaningful hurdle for the government.” Indeed, it seems to me that a finding that requiring people to prove the reasons for their presence in a prohibited area, instead of asking the prosecution to prove that their purpose in being there was not among the authorized exceptions, infringes the presumption of innocence is likely enough.

Can the reverse onus (and, possibly, the burden it puts on the freedom of the press) be justified under s. 1 of the Charter? Here I part ways with prof. Forcese, who says that he doesn’t “think [he] could ever concoct a s.11(d) or s.2 justification that would satisfy s.1.” I think that the way for the government to at least try justifying the reverse onus aspect of its travel ban would be to point to the difficulty for the prosecution of gathering evidence in prohibited areas, and perhaps the comparative ease with which the persons who actually travel there might be able to collect evidence of their activities. Prof. Forcese says that “evidence necessary to prove the many complicated elements of a terrorism offence [is] often unavailable when it comes to proving actual conduct in a war zone,” which might explain the paucity of prosecutions under these offences in Canada and elsewhere. Arguably, the same logic can be applied to the travel ban, and invoked to justify requiring the accused, rather than the prosecution, prove the reasons for their travel, and indeed make the reverse onus the least restrictive means of attaining the objectives of the travel ban.

Just what would such an argument, if it is accepted (and I don’t feel confident prognosticating whether it would be, though I think that that’s at least a real possibility) prove? A couple of Supreme Court decisions are interesting here. One is R. v. Keegstra, [1990] 3 S.C.R. 697, the hate speech case. It is better known for what it said about freedom of expression, but there was also a s. 11(d) argument involved, because the Criminal Code provided a defence of truth to a hate speech charge ― but one that the accused had to prove. The majority said that while a violation of s. 11(d), the reverse onus was justified under s. 1, in part because proving the falsity of a statement beyond reasonable doubt is too difficult, and because the harm caused by hate speech occurs even if what is said is true, so that it is important not to let the accused off the hook too easily.

The other relevant case is R. v. Laba, [1994] 3 S.C.R. 965, which considered the constitutionality of a requirement that a person accused of selling ore or other minerals containing precious metals prove his or her legal entitlement to do so. This was, concededly, a violation of s. 11(d), but the Supreme Court concluded that some infringement of the presumption of innocence was justified because it was important to prevent trade in stolen ore, and the technology that would allow the Crown to prove the provenance of an ore sample and thus establish that it had been stolen was not yet good enough. However, the Court also said that instead of having the accused prove their entitlement to be selling the ore on a balance of probabilities, the requirement that the infringement be minimally impairing of the s. 11(d) right meant that it should be enough for them to present evidence that raises a reasonable doubt as to their guilt.

We don’t know, of course, what form the reverse onus aspect of the travel ban would take. And even if it is a full requirement to prove one’s reason for going to a prohibited zone on a balance of probabilities, it is not clear to me whether the courts would see the case as being more like Keegstra or Laba. In R. v. Keegstra, [1996] 1 S.C.R. 458, the Court said that the two cases were distinguishable, but did not actually explain why. I suppose the difference is this idea that hate speech is harmful even if within the scope of the defence. What about travel to prohibited zones? If I read prof. Forcese correctly, he suggests that it might be, but perhaps the very existence of the defence should be taken to reflect a governmental judgment that this is not so.

I come back now to the s. 7 issue I had set aside before. It might be something like a trump card against the s. 1 argument I have just described. The possibility of imprisonment for breaching the travel ban would have to be in accordance with the principles of fundamental justice. The relevant principle here is that first identified in Chief Justice Dickson’s judgment in R. v. Morgentaler, [1988] 1 S.C.R. 30 (and later recalled ― although not found to be applicable ― by the majority in R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187): “when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.” The issue here is was whether the difficulty of obtaining evidence in a prohibited area would mean that not only the prosecution, but also the defence would it it impossible to do so. (By contrast, in Laba, the Court was of the view that an innocent person would not find it difficult to introduce the evidence required at least to raise a reasonable doubt.) As I suggested above, it seems to me that the accused should be in a better position than the prosecution, but I don’t know enough to really tell.

All that to say, it is by no means impossible that a travel ban, even in the form mooted by the Prime Minister, would be constitutional, but also by no means certain. The matter is quite complicated, not least because many of the constitutional issues that the proposal raises have not been much explored. Uncertainty isn’t only a characteristic of war zones. It is also, sometimes at least, a prominent feature of constitutional law.

UPDATE: Kent Roach takes on the travel ban proposal an interview with UofT News. He thinks that the ban would infringe ss. 6(1) and 11(d) of the Charter, and also seems more skeptical of its merits than prof. Forcese. Also, have a look at CM’s comments below. My own views haven’t changed, however.

FURTHER UPDATE: Michael Plaxton Tyler Shandro comments over at the Policy Options blog (apologies for my confusion about the authorship of the post!). He seems pretty confident that Mr. Harper’s proposal, in its current form, already takes the Charter issues into account and is constitutional. Still, I am not persuaded that the objections I discuss above can be so easily dismissed.