More of the Same

Yet another “tough on crime” attempt to deny judges discretion about to be struck down

Last week, the Alberta Court of Queen’s Bench issued yet another in a long series of constitutional reverses for the previous federal government’s “tough on crime” agenda, holding in R v Ndhlovu, 2016 ABQB 595 that legislative amendments that rendered the making of sex-offender registration orders mandatory was contrary to section 7 of the Charter. It is, as yet, not a finding of unconstitutionality, because ― quite unusually ― the Crown asked and will permitted to proceed separately with a justification under section 1 of the Charter, but successful justifications of section 7 infringements are vanishingly rare. More of the same, then, in that as in many cases where the courts have struck down mandatory minimum sentences, Parliament’s attempt to take discretion away from sentencing judges is deemed to be the source of constitutional difficulty ― albeit on a somewhat different basis.

In 2004, Parliament enacted the Sex Offender Information Registration Act, which allowed prosecutors to seek orders requiring those convicted of certain offences to register with and provide extensive information to the police, who can conduct random checks to ensure that the information provided by the offender is correct. Non-compliance is itself an offence and can lead to heavy fines or imprisonment. In recognition of the fact that these requirement would not always be appropriate, Parliament allowed judges to reject the prosecutors’ applications “if the effects of the order on the offender’s privacy or liberty interests were grossly disproportionate to the public interest in protecting society” by acquiring information about the offender. In 2011, however, Parliament changed this regime when it enacted the Protecting Victims from Sex Offenders Act. Among other things, that statute dispensed with the need for prosecutors to seek a registration order (and thus their discretion not to do so), and the judges’ discretion not to make an order.

The constitutionality of the discretionary regime of the 2004 version of the Act had been challenged a number of times, but was upheld. In Ndhlovu, it was the mandatory character of registration requirements as they now stand that was alleged to be unconstitutional. The Crown having conceded that the legislation interfered with liberty ― presumably, because of the possibility of imprisonment for non-compliance ― the main question for Justice Moen was whether that interference was arbitrary, overbroad, or grossly disproportional. The registration regime’s purpose is mainly to help police investigate known or suspected sexual offences by providing them with accessible information about known offenders ― on the theory that they are likely to re-offend. The 2011 amendments to the legislation added a further purpose of “preventing” sexual offences, although it is not clear how this to be achieved, and not much is made of this further purpose in Justice Moen’s reasons. The question, then, is whether the regime does in fact serve to help investigate offenses at all (otherwise, it would be arbitrary), whether it fails to do so in some instances (which would make it overbroad), and whether its effect in doing so is grossly disproportionately small relative to its consequences on the persons subject to the regime.

Justice Moen rejected the arbitrariness claim. The Crown argued that the registration regime “is based on the assumption that convicted sex offenders have an increased propensity to commit sex crimes” [90] ― without, it would seem, any data to support this “assumption”. Whether the judge accepted the Crown’s argument is not quite clear to me. He wrote that “[t]here is, no doubt, a statistical probability that a sex offender will offend again” [92] That’s true so far as it goes, but put this way, the sentence would still be true even if data showed that sex offenders were actually less likely than the rest of the population to commit sexual offences in the future ― there would still be “a statistical probability”. Perhaps this is not what Justice Moen means ― but that suggests that he might not understand the concept of “statistical probability” (is there any other kind?) very well.

This is ultimately irrelevant. The heart of the matter for Justice Moen is overbreadth. Already in his arbitrariness analysis he follows up the sentence about “statistical probabilities” by observing that “statistical probabilities cannot protect individuals who will not probably find themselves on that statistical curve ever again”. [92] Again, this might not be very rigorous from a scientific point of view, but what Justice Moen means is that for those offenders who are deemed unlikely to re-offend, registration does little to help police investigate future crimes ― which they presumably are not likely to commit. The Crown conceded as much, but argued that it was impossible to tell which offenders fell in that category. In Justice Moen’s view, however, this argument goes towards establishing a section 1 justification rather denying the existence of overbreadth at the section 7 stage.

In addition, Justice Moen found that mandatory registration is grossly disproportional to its purpose. Those required to register are asked to supply a considerable amount of information, and “the effects of random compliance checks, including the risks of information being divulged during these checks” are significant. (There was evidence that the Edmonton police had a policy intended to minimize these effects and risks, but it was only a policy, not law.) The discretion that used to exist in the registration legislation was an attempt to strike a constitutionally-minded balance between these effects and the needs of law enforcement. With the exemption gone, the law is unconstitutional.

Subject to my reservations about Justice Moen’s understanding of elementary notions of statistics, this seems right. I’d like to venture a couple of observations though. First, still on the statistical theme, I think it is remarkable that both the Crown and, possibly, Justice Moen are content to operate on mere “assumptions” about the propensity of categories of people to commit crimes. Is an assumption all it takes to restrict constitutional rights? Perhaps the Crown will yet come up with actual evidence at the section 1 hearing, but the fact-free nature of the proceedings so far is depressing. Second, speaking of the section 1 hearing, I don’t recall seeing Charter proceedings bifurcated in this way before. I’m not sure whether this development, if it takes hold, would be a good or a bad thing. In any case, it’s worth keeping an eye on, though it is only potentially relevant in a relatively small number of cases, as the infringement of a right is often a foregone conclusion and section 1 is all there is to debate.

Finally, I think it’s useful to note that this case illustrates just how narrow a concept arbitrariness in the section 7 sense is. Suppose that the assumption about sex offenders being prone to recidivism is not correct. (I don’t know whether it is, but assumptions have a way of turning out to be false from time to time.) If so, singling out sex offenders for registration would be arbitrary in the sense that it would illogical and capricious, which is how a layperson would use the term arbitrariness. But the legal test ― would registration contribute to the objective of facilitating the investigation of crime ― would still be satisfied. This test can, indeed, justify the registration of every person in Canada on the same terms as sex offenders, since it would no doubt help make police work easier. A programme of wholesale registration and surveillance would be overbroad and grossly disproportionate, but not arbitrary in the constitutional sense. Keep this in mind when courts do strike down laws as arbitrary ― those rare cases are well and truly egregious abuses of the legislative power.

The late administration’s “tough on crime” agenda was bad enough though. Built on assumptions and without regard to justice in individual cases, it will not be missed. While I have been and remain skeptical of claims to the effect that removing judicial discretion in sentencing somehow attacks the judiciary, it is quite clearly often inconsistent with individual rights. But one must hope that the courts will not do too much collateral damage to the law in the process of upholding these rights, important though they are.

What Were They Smoking?

Last week, the Supreme Court held that the prohibition on medical marijuana products intended to be ingested or applied as creams ― as opposed to dried medical marijuana for the purposes of smoking, for which a permission can be granted ― is arbitrary and, therefore, not in accordance with principles of fundamental justice, in violation of s. 7 of the Canadian Charter of Rights and Freedoms. The decision, R. v. Smith, 2015 SCC 34, is terse, but it is noteworthy for a number of reasons.

The respondent, Joseph Smith, was involved in the confection of medical marijuana products not authorized by the regulations, such as “cannabis cookies,” massage oil, and lip balm. He was charged with possession of cannabis and possession for the purpose of trafficking, but contested the charges, arguing that the exclusion of such products from the medical marijuana exemptions was unconstitutional. The Crown retorted that, not being a consumer of such products, he lacked standing to bring such a challenge, but the Court made short work of this argument, pointing out that “[a]ccused persons have standing to challenge the constitutionality of the law they are charged under, even if the alleged unconstitutional effects are not directed at them.” [12]

On the constitutional claim, the Court found that the restriction on the scope of permissible medical marijuana products engaged s. 7 of the Charter in two ways. First, it exposed the makers, sellers, and users of the prohibited products to a threat of imprisonment, and was thus a potential violation of their right to liberty. Second, by “prevent[ing] people who have already established a legitimate need for marihuana — a need the legislative scheme purports to accommodate — from choosing the method of administration of the drug,” [18] the restriction infringes both these people’s liberty and their security of the person. Liberty comprises the right to choose one’s medical treatment. For its part, security of the person is compromised because the evidence accepted by the trial judge showed not only that for for some medical marijuana users smoking it is not the most medically effective treatment, but also that smoking can produce harmful consequences, such as “the risk of cancer and bronchial infections.” [18]

According to s. 7 of the Charter, a law that compromises life, liberty, or the security of the person must be “in accordance with principles of fundamental justice.” One such principle, long recognized by the Court, is a prohibition on arbitrariness, understood as the absence of a rational relationship between a law’s purpose and its effect. The purpose of the rule at issue here, the Court found, “is simply the protection of health and safety.” [24] According to the Court, the evidence on the relative effectiveness of the various forms of medical marijuana for different users shows that, far from serving this objective,

the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care. The effects of the prohibition contradict its objective, rendering it arbitrary. [25]

Besides, there was no evidence that the prohibited forms of marijuana are more dangerous to users, or that they are more likely to fall into the hands of people not authorized to use the drug for medical purposes. The result is “a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object,” [27] contrary to the requirement of non-arbitrariness. Needless to say, this outcome cannot be justified under s. 1 of the Charter, which requires a rational connection between an infringement of a right and some “pressing and substantial” objective.

The last issue for the Court was that of the remedy. In form, the remedy chosen by the Court is a declaration that the prohibitions on marijuana possession and trafficking “are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.” [31] In substance, this is a rare case of “reading in” ― the expansion of the scope of an underinclusive legal rule in order to make it constitutional. Finally, the Court refuses to suspend this declaration in order to give Parliament time to consider its options, because to do so “would leave patients without lawful medical treatment and the law and law enforcement in limbo.” [32]

This seems like an obviously correct decision, at least assuming that the trial judge’s assessment of the evidence on the effects of the various forms of medical marijuana is correct ― indeed, one wonders whether it was really necessary to make a Supreme Court case out of this issue. And what a case, too. Decisions signed by “the Court” are normally issues in the most politically salient and controversial cases. The assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 was one such case. Arguably the Court’s most high profile drug-related decision, in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 was not. Yet judging by the government’s hysterical reaction, the Court was right to treat what strikes me as a comparatively trivial matter as equivalent in importance to assisted suicide. This means, by the way, that the government’s attacks on the Court’s integrity may well be having the perverse effect of making the judges less accountable ― at least if it is the case, as many believe, that opinions signed by their individual authors are an important element of judicial accountability. 

The Court, undoubtedly, is well aware of the political responses to its rulings. Its refusal to suspend the declaration of invalidity might be further evidence of this. That people would remain without treatment to which they are constitutionally entitled was no less true in Carter than it is here; that law and law enforcement would be left in limbo was just as true after the Court struck down the prostitution provisions of the Criminal Code in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. Yet in both those cases, the Court granted the government’s request for a suspension of the declarations of unconstitutionality. The government’s response ― especially its foot-dragging on Carter ― are unlikely to have impressed the judges.

The last point I wanted to note is that Smith joins the growing line of cases, which notably includes Insite, Bedford, and Carter, that has been described as an “empirical turn” ― a tendency to resolve Charter cases by reference to scientific evidence. The Court is not exactly consistent in its use of such evidence, as I have noted in the past, and as Lisa Silver notes in a fascinating recent post over at Ideablawg (which I hope to discuss in more detail soon). But Smith, at least, shows that this trend, however inconsistent, is still very much alive.

It also shows that, the government, for now anyway, tends to lose when scientific evidence ― which the current government, at least, so often ignores ― drives the case. Here, though, the loss seems particularly clear. The government, apparently, had no real arguments at all for its position, which makes me wonder ― what is it that they were smoking when they decided it was constitutionally defensible?