Petty Punishment

The Court of Appeal for British Columbia has struck down yet another element of the “tough-on-crime” agenda of the Conservative government in a recent decision, Whaling v. Canada (Attorney General), 2012 BCCA 435, holding that the abolition of accelerated parole could not be applied to prisoners sentenced before the coming into force of the Abolition of Early Parole Act, S.C. 2011 c. 11. (I wrote about cases in which other parts of the “tough-on-crime” programme were struck down here and here.)

Three prisoners who would have been eligible for accelerated parole under the old terms of the Corrections and Conditional Release Act, S.C. 1992 c. 20, which were in force at the time of their sentencing, challenged the constitutionality of applying to them the abolition of accelerated parole. They won in the Supreme Court of British Columbia. The federal government appealed. It lost.

The challenge is not to the abolition of accelerated parole itself: there is no dispute that Parliament can set the terms of parole eligibility. The issue is rather whether Parliament can change these terms for the worse for an inmate after he has been sentenced and started serving his sentence. The respondents argued that this is a violation of their right “not to be punished … again” for an offence for which they were already punished, protected by par. 11(h) of the Charter. The heart of the dispute was whether the new rules making prisoners already sentenced eligible for parole at a later date and on more onerous conditions than the old ones impose a form of punishment on them, or are merely a matter of sentence administration, as the government contended.

The Court observed “that not every consequence of being convicted of a criminal offence is ‘punishment'” (par. 48)―being required to submit a DNA sample, for example, is not. However, “courts have consistently found delayed parole eligibility to be ‘punishment'” (par. 49) when it is imposed by a sentencing court. In this case, though, it was imposed not by a sentencing court, but by legislation (and thus on all prisoners who might have been eligible for accelerated parole rather than on one in particular in response to his specific crime).

The government argued that the purpose of the legislation made all the difference, and the purpose of the Abolition of Early Parole Act was not to punish, but “to improve sentence management” (par. 50). The Court did not really dispute this characterization of the statute’s purpose, though there was some evidence that it was, at least to some extent, intended as a punitive measure. Rather, following Supreme Court precedent, the Court held that the statute’s effects are as important as its purpose when considering its constitutionality. And the effect of the abolition of accelerated parole is undoubtedly to increase “the harshness of the sentence” the respondents will have to serve. In that, it is “no different from that of parole ineligibility imposed by a judge” (par. 57), which had been held to constitute “punishment” within the meaning of the Charter. Imposing this form of punishment on those who had already been sentenced previously, as the respondents had, was contrary to par. 11(h) of the Charter.

Nor could this violation be justified under s. 1. However worthy the general objective of the Abolition of Early Parole Act might be, what must be justified is its retroactive application in violation of constitutional rights and, the Court held, they are not important enough to do that. It was simply not necessary abolish accelerated parole retroactively.

Indeed. Whatever the reasons for abolishing accelerated parole for the future, imposing tougher punishment retroactively seems merely petty.

Death Penalty and Dignity

The topic of tomorrow’s class in Jeremy Waldron’s Human Dignity seminar is the death penalty and, having blogged about the sorts of arguments that are made for and against it here and here, I want to come back to the topic, because a couple of things caught my eye as I was doing the readings.

One is a passage in Justice Brennan’s opinion in Furman v. Georgia, 408 U.S. 238 (1972), a case in which a majority of the Supreme Court of the United States declared the death penalty unconstitutional in that country. Justice Brennan has no doubt about the sort of arguments that really count in the death penalty debate:

From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. (296)

Now I don’t know whether this is true as an empirical matter. Perhaps, up to 1972, “the battle” always had “been waged on moral grounds.” But, as my previous two posts suggest, it does not really seem to be the case anymore, at least not in the political realm, as opposed to philosophical discussions. If Justice Brennan’s reading of the debate was correct at the time, this means there has been an important change in the way Americans argue about the death penalty. But perhaps he was wrong, deliberately or not, mistaking what he wanted to be the case for what actually was.

Yet it may well be that―as my previous posts suggest―moral grounds are not those on which opponents of the death penalty ought to be fighting if they care to win. Justice Brennan’s victory in Furman was short-lived, Merely four years later that decision was (partially) overturned in Gregg v. Georgia, 428 U.S. 153 (1976) which held that the death penalty was not unconstitutional provided that its imposition was surrounded with certain safeguards.

And the story of two Canadian cases discussing the death penalty, in the context of challenges to decisions of the Canadian government to extradite to the United States people who are at risk of being executed there is interesting too. In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, a 4-3 majority held that extradition in these circumstances did not breach s. 7 of the Canadian Charter of Rights and Freedoms, the dissenters’ furious invocations of human dignity notwithstanding. 10 years later, in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, the Court effectively reversed Kindler, in a unanimous judgment that did not discuss human dignity at all. And while it does invoke some arguments that appeal to considerations of dignity and justice―the risk that innocents will be put to death if the the death sentence is applied, and the irremediable cruelty of the “death row phenomenon”―its makes them look as though they are almost secondary. The first argument is that Canada’s law and public policy (especially in foreign affairs) consistently condemn the death penalty, so that its rejection ranks among the basic tenets of the Canadian legal system. (Possibly, probably even, that is because Parliament and the government of Canada came to regard the death penalty as morally wrong, but the Supreme Court doesn’t say that!)

All that is not to say that this is how things should be. If one is philosophically inclined, one is likely to regret the avoidance of the “moral ground” in favour of “merely” practical considerations. On the other hand, perhaps there is in fact good reason for that avoidance. Moral arguments can cut both ways―Kant, the great moralist and champion of human dignity, thought that the death penalty was not just permissible, but absolutely required in cases of murder―and there is no good way of proving their correctness to everyone’s satisfaction, and so to persuade people. (People still can change their minds of course. Justice Harry Blackmun did so famously. He dissented in Furman and, much later in life, dissenting again from a denial of certiorari (the U.S. equivalent of a leave to appeal to the Supreme Court) in Callins v. Collins, a death penalty case, where he wrote that “[f]rom this day forward, [he] no longer [would] tinker with the machinery of death” (par. 7) and that his court’s continued willingness to do so “lessens us all” (par. 40).) Maybe there is more agreement, or at least less intractable disagreement, to be found on the ground of practical considerations.

A Strike against Three Strikes

The Superior Court of Ontario has struck down another element of the Conservative government’s “though-on-crime” legislative programme last week, in R. v. Hill, 2012 ONSC 5050. (I blogged about another such case here.) The provision at issue in Hill was s. 753(1.1) of the Criminal Code, which provides that if an accused is convicted of one of a list of offences (mostly, but not only, sexual and/or violent ones) and a sentence of two years’ imprisonment or more would be appropriate, and the accused has already been twice convicted of one of the same list of offences, then the accused is presumed to satisfy the criteria for being declared a dangerous offender, unless he proves the contrary on a balance of probabilities, which will normally lead to the imposition of an indefinite sentence of imprisonment. It is a milder version of the three-strikes-and-you-are-out laws popular in certain quarters in the United States, although it creates a rebuttable presumption rather than imposing life imprisonment automatically.

Mr. Hill challenged s. 753(1.1) on the basis that it contravened the presumption of innocence protected by s. 11(d) of the Canadian Charter of Rights and Freedoms, the prohibition on cruel and unusual punishments protected by s. 12, and the right not to be deprived of liberty except in accordance with principles of fundamental justice, protected by s. 7. of the Charter. Justice Bryant’s decision deals mostly with s. 7. (S. 11(d) doesn’t apply at the sentencing stage, and there is no need to consider s. 12).

S. 7 is obviously engaged by s. 753(1.1) of the Criminal Code, since it makes the imposition of an indeterminate sentence much more likely than it would have been in its absence. Instead of the Crown having to prove beyond a reasonable doubt that an accused meets the criteria for being classified as a dangerous offender, as it has to prove any other element of the offence or aggravating circumstance that can increase the sentence to be imposed, s. 753(1.1) provides that the accused is presumed to meet these criteria unless he can show otherwise. The reversal of the burden of proof is all the more significant since it frees the Crown not from the civil balance-of-probabilities burden, but from the much heavier beyond-reasonable-doubt one.

That is problematic, holds justice Bryant. After reviewing the jurisprudence on the presumption of innocence (which is relevant, despite not being directly applicable at the sentencing stage, once the accused’s guilt has been established) and the burden of proof in criminal cases, he concludes that “the onus and standard of proof for aggravating factors are principles of fundamental justice” within the meaning of the Charter (par. 52). Yet even if the accused manages to raise reasonable doubts about whether he really meets the criteria to be classified a dangerous offender, s. 753(1.1) provides that he must still be classified as such, if he cannot meet the rather more difficult standard of the balance of probabilities. For this reason, s. 753(1.1) is “in prima facie violation of the principles of  fundamental justice” (par. 56). Justice Bryant refers to R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, in which Justice Abella argued, in her majority reasons, that

[a] young person should receive, at the very least, the same procedural benefit afforded to a convicted adult on sentencing, namely, that the burden is on the Crown to demonstrate why a more severe sentence is necessary and appropriate in any given case (par. 82).

The circle is now complete: young offenders must receive the same benefits as adults; adults now must receive the same benefit as young offenders. That seems like a dubious argument to me, but the conclusion that freeing the Crown from the burden of proving an aggravating factor beyond a reasonable doubt is contrary to fundamental principles of Canadian criminal law seems exactly right.

Justice Bryant then turns to the government’s attempt to justify s. 753(1.1) pursuant to s. 1 of the Charter. Its objective of protecting members of the public against threats to their life and health is pressing and substantial. But it is not necessary to achieve it:  “[t]he Crown did not adduce evidence that a reversal of the onus of proof was necessary to overcome practical evidentiary hurdles which impede the successful prosecution of dangerous offenders” (par. 64). The Crown has access to the necessary evidence; it can require the accused to undergo a psychiatric assessment. It doesn’t need the shortcut created by s. 753(1.1). Furthermore, as the Supreme Court held in D.B., even if the possibility of a heavy (or, here, indefinite) sentence being imposed is necessary to protect the public it is not necessary for its imposition to be easy. Justice Bryant concludes that “it is the availability of an indeterminate sentence which advances the objective of the protection of the public rather than the allocation of the onus of proof to the offender” (par. 70). For no benefit, s. 753(1.1) exacts a heavy cost since, as the Crown’s expert psychiatrist testified, it might require the indefinite imprisonment of people the basis of evidence which, from a scientific point of view, is insufficient to deem them dangerous. It is thus not only unnecessary, but disproportionate. S. 1 cannot save it.

Sounds right to me. Too bad though, that we don’t have a three-strikes-and-you’re-out rule of constitutionality: there have already been more than three strikes against the Tories’ tough-on-crime legislation.

Words and Misdeeds

Following up on my musings here and here on the reasons why we think it is sometimes permissible to punish a person for saying something that is likely to cause others to act in a certain way, and sometimes not, my friend Simon Murray asks a very sensible question: in what other cases do we sanction people on the basis of a possible reaction of others to his words?

The answer is that we do it in quite a range of situations. The Criminal Code is replete with incitement offences, which criminalize statements made by one person because of the intended reaction to these words by another, to whom they were addressed.

There is a general incitement offence in s. 22, which provides that

22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.

(It is not necessary, by the way, that person whom the accused incited to commit an offence actually have committed it: see, for example,  R. v. Hamilton,  2005 SCC 47, [2005] 2 S.C.R. 432.)

But there are also specific incitement offences: for example incitement to mutiny (s. 53), counselling piracy (s. 75), incitement to various illegal sexual acts (ss. 152 et seq., 160), counselling suicide (par. 241(a)), advocating genocide (s. 318) and incitement of hatred against an identifiable group (s. 319), and others.

What is interesting is that the Criminal Code sanctions incitement not only of crimes, but also of things that are not criminal or even immoral. For instance, racial hatred is immoral, but not in itself criminal, yet incitement to it is. And suicide is arguably―though this is admittedly controversial―not even immoral, never mind criminal. To be sure, the criminalization of incitement to suicide probably dates to a time when suicide was in fact regarded as immoral. But, despite thinking that a person who commits suicide is not acting immorally (at least as a general matter; there might be specific exceptions depending on the circumstances), I do think that it is immoral to incite someone to do it, and I’m not convinced that we are wrong to criminalize such incitement.

On the other hand, I do think that criminalizing other forms of incitement, even of incitement to immoral actions, would be wrong. (Consider, for example, imposing a criminal sanction for incitement to adultery.) And for the most part, the Criminal Code sanctions incitement to commit crimes, not merely morally reprehensible acts. So, once again, it seems that the law is all over the place here, and so are my own intuitions. Maybe Parliament and I are just being inconsistent. But maybe there is a deeper logic to it all, which I haven’t so far been able to figure out. I’m afraid I’m not especially knowledgeable about criminal law and theory, so that’s certainly possible.

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.