What’s in a Name?

The CBC has a story about criticisms of Ontario’s rules which allow the publication of the parties’ names in family law court decisions. The availability of these decisions online, especially on CanLII, makes them widely accessible―and people are concerned about others learning the details of their divorces, their personal information, or even seeing allegations made against them, with or without basis, by acrimonious exes. Some people say that a rule like that in Québec, where parties (and their places of residence) in family law cases are identified only by initials would be better to protect the parties’ privacy, while still letting the public and the media know what issues court cases are about and how the courts deal with them. But judges and government officials seem uninterested in considering such a change, pointing to the fact that courts can already order elements of the evidence to be kept confidential.

I wrote a long post on this same issue―though not only in family law cases―last month. About Québec’s rule of anonymity, I wrote that it is based on

[t]he idea―and I think it is a sound one―… that (many of) the positive effects of publicity can result from publishing the court’s decision but not the parties’ names. From the perspective of keeping the courts accountable, the publication of the parties’ names probably matters little; what is important is that journalists, lawyers, and interested citizens know what evidence was before the court and what the court did with it. On the other hand, there is also a legitimate public interest in knowing what is happening to whom, or who exactly is involved in stories that attract attention.

I didn’t know, and I still don’t, how to balance these considerations. I concluded with some questions, which bear repeating:

Does our general presumption of publicity of court materials still make sense in this new reality that the internet has brought about? Or should we re-balance free speech and privacy, perhaps by making anonymization the default rule? If so, should we make exceptions? A blanket anonymity rule might be problematic, because there are cases where knowing who is involved is very much in the public interest. But are exceptions workable? If not, does this mean we should abandon anonymity after all?

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.

Keeping Judges Busy

The Globe and Mail reports that the federal government will go to the Supreme Court to review the constitutionality of its Senate Reform project. Opponents of the reform have dared it to do so for years. They’ll get their wish now. The Supreme Court’s was already asked to rule on Senate reform project once, by Pierre Trudeau’s cabinet. The result was Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54―a somewhat vague and inconclusive decision, because the government then did not have a specific reform project, and referred only vague questions to the Court. This time will be different. I won’t comment on the substance of the case just yet, but for those interested in the subject, the text of the bill, as it now stands, is here. And here are the comments of Peter Hogg, the most prominent Canadian constitutionalist, and of Fabien Gélinas, who taught me constitutional law at McGill, on a previous Senate reform bill.

The government also announced today that it will appeal the decision of Québec’s Superior Court in Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 4202, the gun registry case, which I summarized and commented on last week. As I wrote then, I think that the decision should stand, albeit that Justice Blanchard’s opinion was far from the best that could have been written.

So the government is keeping judges―and lawyers of course, not to mention us humble bloggers―well occupied. Which reminds me: it will be four months tomorrow since Justice Deschamps announced her resignation from the Supreme Court. Since the government likes to keep the courts busy, it should also make sure they are fully staffed.


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?

De la connerie

Je voudrais revenir sur une chronique qu’a publiée hier Alain Dubuc dans La Presse. Faisant allusion à la une récente de Libération qui, s’adressant à l’homme le plus riche de France, qui aurait demandé la nationalité belge dans le but de payer moins d’impôts une fois établi dans le plat pays, hurlait “[c]asse-toi, riche con!”, M. Dubuc se demande si les québécois aisés seront, eux-aussi, tentés de “se casser” en réponse aux augmentations d’impôts prévues par le Parti québécois. (Étant donné la position minoritaire du gouvernement du PQ, il n’est pas certain que ces augmentations auront lieu.) Ce qui m’intéresse ici, ce n’est pas l’aspect économique (les hausses prévues sont-elles nécessaires? vont-elles causer un exode d’entrepreneurs?), mais plutôt certaines questions relatives à la moralité politique tant de la hausse proposée que du départ possible de certains contribuables en réponse à cette hausse.

M. Dubuc suggère que les mesures proposées par le PQ sont illégitimes:

Ces taux élevés posent néanmoins un problème d’équité. Les deux tiers des contribuables visés ont un revenu entre 130 000 et 200 000$. Ce ne sont pas des Tony Accurso, mais des gens tout simplement à l’aise, souvent des salariés. Avant de leur taper dessus, il aurait fallu démontrer qu’ils ne paient pas leur juste part. Et démontrer que l’effort que l’on exige d’eux était essentiel. Ce n’est pas le cas. On leur demande d’absorber une contribution santé qui visait 4 millions de personnes et de payer le gel des droits de scolarité. Il y a là un choix idéologique qui entache la légitimité de la ponction.

Je pense que M. Dubuc a tort. Certes, augmenter les impôts sur certains contribuables pour redonner de l’argent à d’autres relève d’un choix idéologique. Et alors? Ne pas le faire, c’est un choix idéologique aussi, seulement animé par une idéologie différente. Comme le reconnaît M. Dubuc lui-même, “[l]a fiscalité, […] ce n’est jamais neutre.” Quels que soient les choix qu’on fait en la matière, l’idéologie y joue un rôle, et il faudrait éviter de prétendre que nos choix sont objectifs alors que ceux de nos adversaires, et seulement ceux-là, sont contaminés par l’idéologie.

Mais si on aurait tort d’essayer de délégitimer le choix politique d’augmenter les impôts sur les contribuables aisés sous prétexte qu’il s’agit d’un choix idéologique, on aurait tout aussi tort de vouloir délégitimer le choix de certains de ces contribuables de “se casser”, à la manière de Libération (dont le titre était, on s’en doute bien, une antiphrase). Car il n’y a rien d’immoral à ce que les membres d’une minorité―et il s’agit bien d’une petite minorité, 135 000 personnes sur les quelque 5 millions d’électeurs québécois―qui, par définition, ne peuvent prévaloir dans une compétition électorale démocratique, cherchent à échapper aux prétentions de la majorité. Ceux qui ne peuvent pas faire compter leur voix ont l’option de la sortie, et l’injuste consiste non pas à ce qu’ils l’exercent, mais à vouloir la leur enlever. Et cela ne dépend pas de la justice de sa revendication sous-jacente. Même si on pense que l’état est en droit d’interdire la consommation des drogues, on ne prétendrait pas, je pense, que la personne qui déménage dans le pays voisin qui, lui, la permet, afin de s’y adonner commet une injustice quelconque. (Pourtant, cette personne-là aussi nous prive de ses impôts et de sa contribution éventuelle à la chose publique.) Il y a quelque chose de pervers, de cruel, à dire à une personne que non seulement on n’a pas la même vision de ses droits qu’elle, mais qu’elle ne doit même pas aller rejoindre un groupe qui, lui, partage la sienne.

La fiscalité, comme bien d’autres enjeux de politique publique, divise les opinions. C’est normal, c’est tant mieux même. Cependant, lorsque nous débattons nos opinions contradictoires, il ne faut pas tomber dans le piège de diaboliser nos adversaires. C’est une chose que de les accuser de ne pas maîtriser les faits ou de ne pas comprendre les implications ou les conséquences de leurs positions. C’en est une autre que de les accuser de mauvaise foi. On peut les traiter de cons si on veut,  mais pas de salauds. Car c’est ça, justement, la vraie connerie.