Rafilovich: A Textualist (or Quasi-Textualist) Turn?

Since Telus v Wellman, the Supreme Court of Canada has moved towards a sort of “textually constrained” purposivism in statutory interpretation cases. To my mind, textually constrained purposivism involves two parts: (1) a focus on the text over abstract purposes in determining the meaning of text and (2) if there are conflicting purposes at the same level of abstraction, choosing the purpose most local to particular provisions, rather than abstract purposes of statutes. Telus v Wellman involved (1). The Supreme Court’s recent opinion, R v Rafilovich, addressed (2). It teaches that courts should not look to abstract, overall purposes of a statute in place of more particular, local purposes. The latter purposes actually shed light on the text at issue, rather than using abstract (perhaps unenacted) purposes to divine text.

In this comment, I briefly address the setup of Rafilovich. Then I address why Rafilovich demonstrates a sort of textually constrained purposivism, threading together Telus v Wellman and Rafilovich.

Setup

Rafilovich involved the proceeds of crime provisions of the Criminal Code and the provisions in the Criminal Code for the return of seized property for the purposes of legal fees. The issue was whether property that was returned to the accused to pay for “reasonable legal fees” could later be subject to a fine by the Crown, if the property was not available for forfeiture (because it was already spent). Martin J wrote the opinion for the majority, in which she outlined the process by which these two sets of provisions worked (para 22 et seq):

  • The accused is charged with a “designated offence,” under s.462.3(1) of the Criminal Code.
  • Property is seized under Criminal Code provisions that allow the state to take property from an accused on the basis of reasonable and probable grounds that the property may eventually be proven to be proceeds of crime.
  • The accused makes an application for the return of the seized property for the purpose of paying for reasonable legal fees (s.462.34(4) to (6) of the Criminal Code). Seized property can only be returned “if the judge is satisfied that the applicant has no other assets or means available” to pay for legal expenses (s.462.34(4)(c)(ii)).
  • The onus shifts to the Crown to prove that certain property meets the statutory definition of proceeds of crime. Only property determined to be “proceeds of crime” is subject to forfeiture or a fine in lieu of forfeiture.
  • If the property which=proceeds of crime is no longer available for forfeiture, the judge may order a fine instead of forfeiture (s.462.37(3) and (4)).

Martin J then outlined the purposes of the proceeds of crime provisions, including the “return for the purposes of legal fees” provisions. The overall purpose of the proceeds of crime section of the Criminal Code is to ensure that “ ‘crime does not pay’ and to deter offenders by depriving them of their ill-gotten gains” (at para 2). But this overall purpose did not run through, at full force, all provisions of the section. Martin J outlined purposes particular to the legal fees provisions, including (1) ensuring access to counsel and (2) upholding the presumption of innocence (at para 53). To Martin J, these particular provisions must be “balanced with the primary objective of the proceeds of crime regime” (ibid). Permitting the Crown to take a fine amounting to the cost of legal fees spent during the course of the proceedings would run counter to these two objectives.

Moldaver J, in dissent, took a different view of the statute. He would have prioritized the “crime does not pay” overall purpose of the statute: “…I am of the view that the statutory regime’s primary objective of ensuring that crime does not pay need not and should not be sacrificed on the altar of the ‘secondary purposes’ relied on by my colleague” (at para 92). Moldaver J went to pains to note that all of the primary and secondary purposes of the statute could be achieved by prioritizing the primary purpose (ibid).

Analysis

In my view, Martin J’s majority opinion gives effect to explicit text in the Criminal Code that sets out “safety valve” provisions from the general proceeds of crime provisions governing reasonable legal expenses. These provisions, setting out different text, must emanate from a different purpose. In other words, these provisions on a plain reading have little to do with ensuring crime does not pay. For that reason, the provisions must reflect a different purpose than the overall one. Giving effect to Parliamentary meaning in language means recognizing this different purpose.

The starting point for this argument is a description of the general problems that plague Canadian statutory interpretation. As I wrote in my piece “Statutory Interpretation from the Stratasphere,” there are two basic problems in statutory interpretation: vertical abstraction and horizontal frequency. Vertical abstraction is the problem of, in one particular statutory provision, choosing the appropriate level of abstraction for the purpose which governs in relation to particular text. Horizontal frequency involves choosing the purpose most local to the dispute/legislative provision at hand among purposes at the same level of abstraction. Telus v Wellman involved the former issue, but Rafilovich involves the latter: do we choose the “primary” purpose of “crime does not pay” to resolve the dispute, or the more local purposes of access to justice and the presumption of innocence?

The Federal Court of Appeal has already dealt with this problem in the context of the Williams case, in which Justice Stratas sensibly isolated the horizontal frequency issue. As I wrote in “Statutory Interpretation from the Stratasphere”:

Williams shows a way to properly select the purpose. In that case, Justice Stratas identified the different purposes bearing on the interpretive difficulty; under s.3, the Act was aimed at “keeping track of cross-border flows” of currency, which fulfills larger public safety concerns. However, under s.13, the Act was directed at concerns of privacy. Those concerns were manifested in specific statutory text aimed at this “very limited” function.

There is a duelling tension between these statutory provisions, but Justice Stratas resolved the issue by focusing on the statutory purpose which bore most heavily on discovering the meaning of the statute. It would do no good to discovering the meaning of the provision at issue in Williams to frame the purpose at the level of public safety and end the matter. Instead, Justice Stratas sensibly isolated the purpose bearing on the problem by referencing specific statutory text supporting that purpose.

Applying this sort of thinking to Rafilovich, Justice Martin is clearly in the right. In this case, the most local purposes to the dispute at hand were the purposes speaking of access to justice and the presumption of innocence, assuming these purposes were identified correctly. Why must these purposes be prioritized over the general purpose? Because of the principle of democracy. The use of different language to express Parliament’s law in the legal fees provisions should lead to different interpretive outcomes. By this, I mean that ensuring crimes does not pay may be an overall purpose of the proceeds of crime provision, but Parliament clearly used different language and a different approach in the legal fees provisions. This different approach must, consequently, reflect different legislative purposes, as the legislative history in the case outlines (see para 39 et seq—though I cringe at the reliance on legislative history writ large). The court must give “purpose and meaning to each provision” (at para 20).

Moreover, ensuring crime does not pay is an odd purposive fit for the language under interpretation here. The availability of a fine for money spent on legal fees hinges on the fact that the money spent on legal fees is no longer available—it was spent. One could hardly say that an accused is benefitting from crime because of the mere fact that he paid for his legal defense with fees that, at the time of their spending, have not been shown to be proceeds of crime definitively. Furthermore, as Martin J notes, an accused may simply forego counsel, fearing a fine—which would undermine the so-called “secondary purposes” of the legal fees provisions. Instead, it is more natural to read the legal fees provisions as meaning something different and reflecting different purposes of access to justice and the presumption of innocence. These purposes, as in Williams, bear most heavily on discovering the meaning of the particular legislative provisions under interpretation—in other words, they are the most helpful to solving the interpretive difficulty. “Crime does not pay” does not, practically, get us any closer to solving the interpretive difficulty.

True, it would be right to note that money returned for legal fees could later be determined to be proceeds of crime; from this perspective, the accused “benefitted” from crime because he used tainted money to pay for his legal fees. But there are two responses to this position. First, at the time the accused spends the money on legal fees, one does not know whether the fees constituted “proceeds of crime”; “the accused may never be convicted, or the property may never be proven to be proceeds of crime. Thus, when accused persons spend returned funds on reasonable legal fees, they are spending their own money on their legal defence” (at para 45). Secondly, when balanced with the local purposes—access to justice and the presumption of innocence—it is more likely that Parliament intended a carve-out from the general “crime does not pay” principle in the distinct circumstances of legal fees. This is because of the centrality of counsel in our constitutional system. It is not absurd to suggest that when Parliament enacted these provisions, it had the backdrop of the important role of counsel in mind, as a limited carveout from the general crime does not pay principle (see the legislative history at paras 40-41). With that role in mind, coupled with the important role of the presumption of innocence, it is not a far leap to suggest that Parliament wanted different purposes to drive these particular sections of the Criminal Code.

Overall, and as I mentioned above, textually-constrained purposivism has two parts. Telus v Wellman focused on the importance of text vis-à-vis purpose. Rafilovich solves the other problem associated with purposivism: how do we decide which purpose governs? Martin J’s opinion selects the most local purposes to the interpretive dispute, explicitly giving meaning to Parliament’s language in the legal fees provisions. This, to my mind, is a positive step.

R v King: Creative Remedies

On September 19, 2019, certain new amendments to the Criminal Code took effect. Those amendments, among other things, repealed s. 634 of the Criminal Code, which enshrined the statutory right to peremptory challenges of potential jurors (as opposed to challenges for cause). The bill in question replaced s.634 with a new provision that allowed expanded powers for a judge to stand aside certain jurors. In R v King, Justice Goodman considered the constitutionality of this repeal-and-replace.  The applicant had made arguments that “the repeal of s.634 of the Criminal Code…violates his right to a fair trial pursuant to ss.7, 11(d), and 11(f) of the [Charter]” [2]. The judge ultimately accepted these arguments, concluding that the repeal provision was unconstitutional. When it came to s.1, Justice Goodman did not conduct a full Oakes test analysis, given the Crown’s concession that “it would be a difficult task to sustain any argument under s.1” in the circumstances of a s.11 or s.7 breach. [257-258].

I am not a criminal law expert, and so the nuances of peremptory challenges are beyond me. And while the constitutional analysis in the case is interesting, other, brighter minds will analyze it. For me, the really interesting part of this case is the remedy. That is what I will focus on in this post.

After concluding that the repeal was unconstitutional, Justice Goodman had to craft an appropriate remedy. He was faced with arguments on the issue. At first, Justice Goodman recognized that under a “plain reading” of s.52 of the Constitution Act, 1982, “[i]t is recognized that a declaration of invalidity will create a legislative vacuum or frustrate Parliament’s clear legislative intent” [262]. He went on to note that, according to his take on principles of remedies law, “courts should not drastically alter the nature of the statutory scheme through  a s.52(1) remedy” [263]. But in the face of this potential “vacuum,” the Crown submitted that “resort must be made to my inherent jurisdiction at common law to control the challenge process,” without the assistance of the former s.634 of the Criminal Code [265]. In other words, with no statutory guidance, the challenge process would devolve to the inherent jurisdiction of the courts, “to ensure that jury selection takes place in a fair and efficient manner such that an impartial jury is selected” [265].

But Goodman J did not accept this proposition, instead deciding that he could issue a s.52 declaration of invalidity that restored the law to the s.634 state:

However, if I accede to the Crown’s submissions, there is a real risk that individuals will be subjected to a jury selection that is unconstitutional. That is inconsistent with Charter values and the principles established in Schachter.

Accordingly, the declaration shall have immediate effect. Pursuant to s.52(1) of the Constitution Act, 1982, the repeal of s.634 is of no force and effect.

It is trite to state that there is no right without a corresponding remedy. The remedy here is to apply or adapt the previous s.634 of the Criminal Code as it existed prior to the enactment of s.269 of the Act. While not “reading-in” per se, (as the former section remains unaltered), the ultimate effect is the same.

In my view, there are a few problems with this sort of reasoning.

First, it is inconsistent with the way the Supreme Court has held declarations of invalidity to work (characterizing what the judge did here as a severance-sort of remedy). Striking down a legislative provision does not leave any discretion in a reviewing court when it comes to the particular time in which a declaration takes effect (with the notable exception of a suspended declaration of invalidity). Starting from first principles, a s.52 remedy works in two temporal directions. Prospectively, a declaration of invalidity “declares that, henceforth, the unconstitutional law cannot be enforced,” but it also “operate[s] retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law” (Hislop, at para 82). Put differently, “[w]hen the Court is declaring the law as it has existed” then a retroactive remedy of this sort is appropriate (Hislop, at para 93). The remedy therefore operates as if the law never existed in the first place: “Thus, in principle, such a provision is invalid from the moment it is enacted…” (Martin, at para 28). More generally, s.52 “confers no discretion on judges” (see Ferguson, at para 35 in the context of constitutional exemptions).

Nothing in these precedents permit a judge to apply a retroactive declaration of invalidity (whether of a whole statute or by severing an offending part, as in this case) at the time frame he or she chooses. This is because when severance occurs, it reaches back to the time the statute was enacted, but it does no more. Thus, it is impossible to conclude that s.634 could somehow reappear, with the declaration taking effect before the replacement of s.634, because a declaration of invalidity does not bring back into force previous versions of a law–even when the law is a repeal. It merely strikes the replacement provision; in this case, new provisions governing the powers of the judge. For this reason, it is impossible to say that issuing a declaration of invalidity can be timed to bring s.634 back into force, because s.634 no longer exists under the repeal-and-replacement law. A different system exists. The judge should have dealt with the logical conclusion of striking down: under the right approach, there would be no peremptory challenge provision in the Criminal Code, and it would indeed be up to individual judges to craft the jury selection process to be consistent with constitutional rights until Parliament stepped in.

This leads to another problem with this decision: it is hard to see what the Court is actually doing, because much of its remedial analysis is unclear. This is true in a few ways. First, the Court failed to conduct the analysis that the Supreme Court  set out in its seminal Schachter case. For example, in Schachter, at 717 the Court was explicit about the approach judges should take in fashioning remedies under s.52:

Once s.52 is engaged, three questions must be answered. First, what is the extent of the inconsistency? Second, can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of the legislation inextricably linked to it? Third, should the declaration of invalidity be temporary suspended?

Here, the judge did not define the extent of the inconsistency, which is usually set by looking to the branch of the Oakes test that the law failed (Schachter, 718). But as noted above, the judge did not conduct a s.1 analysis here. This meant that the extent of the inconsistency with s.7 and s.11 was left undefined, and the remedy chosen did not necessarily fit the violation.

Further, it is unclear what the remedy the judge actually imposed. He seemed to analogize it to a form of “reading-in.” But he paid no mind to the law governing reading-in, and thus imposed a remedy that was profoundly violative of Parliament’s purpose in the repeal provision. For example, in the companion case of R v Muse, the Court cited the Minister of Justice’s take on the purpose of the legislation:

Reforms in this area are long overdue. Peremptory challenges give the accused and the crown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition…[t]o bring more fairness and transparency to the process, the legislation would also empower a judge to decide whether to exclude jurors challenged for cause by either the defence or prosecution. The legislation will strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury…I am confident that the reforms will make the jury selection process, more transparent, promote fairness and impartiality, improve the overall efficiency of our jury trials, and foster public confidence in the criminal justice system.”

Taken this way, it was a clear goal of the legislative provision(s) in issue to remove peremptory challenges and strengthen the existing powers of the judge to control the jury selection process. But the judge in King gave no mind to this legislative purpose. He basically read the old s.634 into the legislation. But reading-in, according to Schachter, can only make sense where it would further a legislative objective or constitute a lesser interference with that objective in a way that does not “constitute an unacceptance intrusion into the legislative domain” (Schachter, at 718). Here, the judge read-in s.634 which was clearly designed to be repealed by the new legislation, and the judge stepped into the shoes of Parliament to craft what he thought was an appropriate legislative scheme (the old s.634). This is not respectful of the purpose of the repeal-and-replace.

One might respond that, with analogy to the law on suspended remedies, the judge actually decided that merely striking the provisions would create a “legislative vacuum.” That vacuum was solved by reading in s.634. And the court would have some support in simply declining to issue a declaration of invalidity: see Mahe, at 392 “…the result of a declaration of invalidity would be to create a legislative vacuum. This result would not help the position of the appellants.” One could extend the reasoning here. But it is not clear that the abolition of peremptory challenges will not help the applicant. And even if it would help the applicant, the judge did not engage with the requisite analysis to make that conclusion. Instead, he relied on the nebulous notion of “Charter values” to assist his crafting of a remedy. It also is not clear that a legislative vacuum would be undesirable in this sense: judges would have the inherent power to craft the challenge process.

As is evident, there is much wrong with this decision. But at any rate, the issue of peremptory challenges has divided courts across the country. It will be interesting to see what happens on appeal.

R v Poulin: Charter Interpretation in the Spotlight

Introduction

Section 11 (i) of the Charter guarantees the right to offenders “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.” Ambiguity ripples through this provision. Most notably, does the provision (a) denote a comparison of the lesser sentence at two relevant times (commission and sentencing) or (b) does it denote a broader look at all the changes in various sentencing provisions, as part of a consideration of variations between the time of the commission of the offence and the sentence? This latter approach could permit an offender to be entitled to a lesser sentence than the relevant ones in force at either the time of commission or the time of sentencing.

This was the issue faced in R v Poulin: does the former approach, called the “binary approach,” apply, or does the latter approach, called the “global approach” apply? Mr. Poulin sought a right to a conditional sentence, which was not in force at the time of the commission of his offence or at the time of sentencing. The conditional sentence, however, entered into force as a form of sentence in 1996 [10]. A global approach would permit Mr. Poulin to access a conditional sentence, because it was in force for a period of time between commission and sentence. A binary approach would not permit Mr. Poulin to access the sentence, because it was in force neither at the time of commission or the time of sentence (I note that there was a mootness issue raised in the case, which I do not address here).

Decision

The majority, written by Martin J, ultimately chose the binary approach. Despite the fact that the global approach is preferred among lower courts, Martin J wrote that “[r]ather than identifying the principles or purposes underlying s.11(i), [the lower courts] have simply concluded that s.11(i) should be given the interpretation most generous to the accused, which they have called the liberal interpretation” [55]. Rather, to Martin J, one must approach s.11(i) from a purposive perspective, as instructed by the Supreme Court in its seminal Charter cases: see Big M, Hunter v Southam [54].

A purposive approach to Charter interpretation, as noted by Martin J, should not be conflated with a generous interpretation [53-54]. Charter rights must be “interpreted liberally within the limits that their purposes allow”[54]. Purpose is found by looking at the language of a particular Charter provision [64], and the original context at the time of its enactment [72]; in other words, the language of the right in its “historic and philosophic” context: Big M Drug Mart, at para 117.

Conducting this analysis, Martin J found that the language of s.11(i) favoured the binary approach. In support of a global interpretation, the respondents relied on the language of s.11(i), which says that the offender is entitled to the lesser of two sentences if the sentence has been varied between the time of commission and sentence. To the respondents, “between” denotes an interval of time, not a measurement of two distinct periods of time. But Martin J ultimately concluded that this intervallic interpretation did not suggest a global interpretation: (“between” “only tells us that s.11(i) concerns itself with the situation where the punishment has been ‘varied between’ the time of the offence and the time of sentencing’” [67]). Rather, to her, the word “lesser” in the provision “evokes the comparison of two options” [68]. This language bounded the purpose of s.11(i) to a binary interpretation. What’s more, reviewing the context of s.11(i) at the time of its enactment, Martin J concluded that there “was nothing to inspire a global s.11(i) right at the time of its drafting and enactment,” in part because “none of the [international] enactments embraced one…” [72].

Martin J then noted that, even after this textual and contextual analysis, “[w]hat remains to be seen is whether the purposes of s.11(i) support a global interpretation of s.11(i), or whether there is any purposive basis to read s.11(i) globally…s.11(i) could still receive [a global] interpretation it its purposes justified it” [85]. Specifically, Poulin submitted that “a binary interpretation of s.11(i) would result in unfairness…where two offenders who committed the same crime at the same time are sentenced at different times, when different sentencing regimes are in force” [87]. Martin J rebuffed this argument by making three points: (1) relative punishments are “linked to the offender and the proceedings against him” and thus “are tethered to two points in time that bear a deep connection to the offender’s conduct and criminality” [90]; (2) a global approach would not ensure identical results for two offenders in the circumstances Poulin describes [95]; and (3) a global approach would disproportionately benefit those offenders who have a long period of time between commission and sentence, because it would allow the offender to pick and choose the lesser punishment [97]. What’s more, importantly, a global right would resurrect punishments “which Parliament has, by repealing or amending them, expressly rejected…” [100].

The dissent, penned by Karakatsanis J, disagreed. To her, the text of s.11(i) suggests a “continuum between the time of commission and the time of sentencing” [148]. Also, “lesser” does not denote a solely binary interpretation [149]. The consequence of this binary “technical” interpretation, to Karakatsanis J, “is contrary to this Court’s conclusion that a generous and purposive approach must be taken to the interpretation of Charter rights” [151]. Put this way, “there is no principled argument that would justify such a limitation…” [153]. Karakatsanis J’s point is due, in part, to the reliance interests that an offender has in choosing a particular course of action, central to the idea of the Rule of Law [152]. All of the choices an offender has to make in the criminal process, to Karakatsanis J, should not be made on the basis of two artificial points in that process [153]. Instead, the entire continuum of possible options should serve to benefit the offender.

Analysis

In my view, the majority clearly had the better argument in this case. This is true for a number of reasons.

First, as a matter of criminal law, it seems odd to me that an offender can pick and choose the lesser sentence that was in force (if only briefly) in between the time of offence and the time of sentence. Yet this is the upshot of the global interpretive approach to s.11(i). As Martin J notes, the time of commission and the time of sentence are not two “artificial points” for a particular offender, as Karakatsanis J opined. Rather, they are points that are intimately connected to a particular offender and his crimes. When an offender chooses to commit a crime, he chooses with the backdrop of the existing law behind him. When an offender is sentenced, it would be truly unfair to subject her to a greater sentence than the one she risked at the time of offence; but one can hardly call it unfair to limit the potential sentencing options to those in force when the offender made the relevant choice and when he is about to be given the sentence. Indeed, this is what is textually prescribed by s.11(i). Karakatsanis J would respond that other choices–such as the choice to instruct counsel, and the choice to accept a plea agreement–are relevant on this spectrum. But as Martin J said, the right to s.11(i) does not speak to all of these choices. Rather, the text mentions the time of the offence and the time of sentence, and so “there is no principled basis to grant an offender… the benefit of a punishment which has no connection to his offending conduct or to society’s view of his conduct at the time the court is called upon to pass sentence” [90].

Secondly, Martin J is completely right to note that there are powerful Rule of Law reasons to reject a global approach, insomuch as that approach revives sentences that the people, through Parliament, rejected. Section 11(i) is a constitutional right that basically incorporates by reference Parliament’s choices. It would be an odd consequence of a global approach that Parliament’s choices—which have since been repealed—should give effect to a particular constitutional provision. This would have the effect of subjecting someone to a law—perhaps a favourable one, true—that is no longer on the books. Yet this is contrary to a basic premise of the Rule of Law, which undergirds s.11(i) as a fundamental purpose.

Thirdly, the majority’s purposive analysis is far more convincing than the dissent’s, in both general terms and in its assessment of text. The majority is absolutely correct to draw a distinction between a “purposive” approach to interpretation and a “generous” approach to interpretation. These do not mean the same thing. As Professor Hogg noted long ago, a purposive approach will tend to narrow a right to clearly defined purposes. In this sense, it would be odd to speak of a purposive approach operating concurrently with a generous approach—except to the extent, as Martin J notes, that one can interpret particularly rights generously within their purposes. But this strikes me as dancing on the head of a pin. More likely, a purposive approach will narrow a right to defined purposes. This makes the dissent’s focus on “generous” and “purposive” interpretation somewhat nonsensical.

The majority, sensibly, first looked to the text to set the boundaries on the right. This is a preferable approach to reasoning backwards from putative purposes, and then using those purposes to denote the meaning of text. Starting with the text makes sense because it is the meaning of the text that is under consideration. We move on to deriving purposes from that text, not the other way around. And on this front, the majority’s textual analysis is preferable to the dissent’s. The dissent relied only on dictionary meanings to discern the meaning of the text. But this is a thin reed on which to rest the meaning of text which arose not in a dictionary, but in the context of constitutional debates among human beings. Rather, the majority focused on the common usage and understanding of the word “lesser,” as real human beings use it:

Whereas comparative terms ending in “est” or “st” single out one thing from the others, comparative terms ending in “er” contrast one thing with another. For instance, we speak of the “better” of two options and the “best” of multiple, the “higher” of two heights and the “highest” of multiple, the “faster” of two speeds and “fastest” of multiple, to give only a few examples. Instead of employing the obviously global phrase “the least severe punishment” (or even “the lowest punishment”), s. 11 (i) uses the binary language “the lesser punishment”.

This is more persuasive than dusting off a dictionary and using that as a sole or determinative basis on which to discern text. While dictionary meanings can shed light on text, common usage should be a key concern of textual interpretation, where dictionary and common meaning differ.

Conclusion

This case raises lots of interesting issues, both relating to the Constitution and to criminal law. Ultimately, I think the majority had the better of the argument.

Frustrating

I am quite late on this, but I have only recently come across a post by Grégoire Webber on the UK Constitutional Law blog, arguing that the Supreme Court’s reasoning in Canada (Attorney General) v. Bedford, 2013 SCC 72, the decision striking down various prostitution-related provisions of the Criminal Code is based on flawed inferences from the fact that these provisions did not criminalize prostitution itself (i.e. the sale of sex). Prof. Webber argues that

[t]he judgment’s repeated assertion that there is a legal liberty to sell sex for money draws on the unstated premise that there is a moral quality to this liberty or to all liberties in the law, such that that which is not criminally prohibited is therefore just, choice-worthy, and not to be discouraged by government or law.

In prof. Webber’s view, this “unstated premise” is mistaken. That selling sex is not legally prohibited does not make it morally permitted. The Supreme Court compared the Criminal Code’s prohibitions on prostitution-related activities, which had the effect of making sex work more dangerous than it would have been in their absence, to a prohibition on wearing a helmet while riding a bicycle. The trouble, prof. Webbers contends, is that

[t]he assumed persuasiveness of this analogy rests on the Court’s unstated and undefended premise that one also has a moral liberty to sell sex for money. Absent that premise, the analogy can do no work, just as it would do no work if appealed to in support of the legal liberties to bully, to commit adultery, and to lie to one’s friends.

If prostitution ―unlike riding a bicycle ― is morally wrong, then it is permissible for the legislature to “frustrate [it] by indirect means,” such as the criminalization of various activities surrounding it, which is exactly what the provisions invalidated in Bedford did.

With respect, I think that this argument misses the point. The issue in Bedford is not whether Parliament ought to be able to frustrate the commission of moral wrongs by indirect means, but whether the means it had chosen were permissible.

Take an example offered by prof. Webber ― say adultery ― and assume that a legislature wants to frustrate its commission without criminalizing it. (For the sake of convenience, make it a legislature in a unitary state, unencumbered by the division of powers under the Canadian constitution, albeit subject to a bill of rights exactly like the Canadian Charter of Rights and Freedoms). The legislature could do several things. It could fund couple-therapy programmes that would (hopefully) make for happier marriages and less adultery. It could require anti-adultery education in schools. It could make a public promise of fidelity a requirement for entering into a civil marriage. It could implement rules punishing adulterous spouses in the event of a divorce, for example depriving them of property or support entitlements they would otherwise obtain. It could also amend the criminal law to provide that the killing of an adulterous spouse is not to be treated as a murder, but as justified self-defence.

The first two of these options would obviously be legally permitted, and I think there is nothing wrong with them from a broader perspective of political morality (though mandatory anti-adultery education sounds a bit creepy). They may or may not be effective, but not legally or morally problematic. A mandatory promise of fidelity may be constitutionally problematic as a violation of freedom of conscience, as I have argued here, insofar as there is disagreement in society over the meaning of marriage and the value (or interpretation) of fidelity. It would also, I think, be morally disturbing, because overbearingly paternalistic. Family law rules punishing adulterous spouses would probably not be unconstitutional, unless it is shown that their application punishes one gender more than the other, in breach of the constitutional guarantee of equality. Morally, such rules would be troubling, not least because of the perverse incentives and acrimony they would generate; even assuming that their purpose would be worthwhile, they could easily do more harm than good. Finally, I think it is quite clear that exempting the killers of adulterers from the law of murder would be both immoral and unconstitutional, no matter how effective such a measure might be at “frustrating” adultery. Subjecting adulterers, no matter how badly we think of them, to an increased risk of death would be a violation of the rights to life and to security of the person, and an entirely disproportionate one.

Indeed, so would be a rule allowing police officers to shoot persons whom they caught in the process of committing actual crimes in situations where doing so is not necessary to preserve anyone’s life or safety. That the activity a legislature seeks to frustrate is a morally ― or even legally ― prohibited one is simply not a sufficient justification for depriving those involved in the activity of certain rights.

Thus, even assuming that sex work is morally wrong ― which I do not believe (and which, as I read his post, prof. Webber might not believe either) ― Parliament is not justified in seeking to frustrate it by any means. The means it chooses, just like the means it chooses to prevent the commission of actual crimes, must still comply with the Charter, and in particular with the security of the person guarantee that was invoked in Bedford.

H/T: Paul Daly

Looking Back

Rule of Law theorists invariaby insist that legislation must be prospective ― that the law must be changed, if changed it must be, for the future only and not for the past. But a thoughtful opinion delivered last week by Justice MacDonnell of the Superior Court of Ontario shows that sometimes at least, things are more complicated, and Rule of Law values might actually counsel against applying the requirement of prospectivity too rigidly.

The decision in question is R. v. Pandurevic, 2013 ONSC 2978. It arose out of an application by an accused for a clarification on whether the instruction that would be given to the jury regarding the defence of self-defence that he intended to advance would be based on the self-defence provisions of the Criminal Code that prevailed at the time he allegedly committed his offence or on an amended provision that was enacted between the time of the alleged offence and that of the trial. It is worth noting that, unusually, it was the accused who was pushing for the new provision to be applied ― and thus to be given retroactive effect, in violation of the usual understanding of requirements of the Rule of Law, ― while the government was arguing for prospectivity.

Justice MacDonnell sided with the accused, holding that Parliament, even though it did not say it in so many words, must have intended the new self-defence provisions to be used in all trials after their coming into force, including where this meant retroactive application. Although courts normally presume Parliament to have no such intent, this presumption can be rebutted, and, said Justice MacDonnell, was rebutted in this case.

One reason for this holding was the fact that the old law was, as Justice MacDonnell put it, “the subject of uniformly withering criticism from law reformers, academics and all levels of the Canadian judiciary for more than 30 years” (par. 10). It was generally agreed to be incomprehensible and incoherent, “little more than a source of bewilderment and confusion to the jury” (par. 13) in the words of Justice Moldaver, then at the Ontario Court of Appeal. Courts and academics had been asking for reform for close to 30 years. Now that Parliament had, at last, heeded their calls, the implementation of much-needed reforms should not be delayed.

Another important, and somewhat related, consideration was that the new self-defence provision is, in Justice MacDonnell’s view, really only ‘new’ in inverted commas. In reality it distills and captures such general principles as can be found in the jurisprudence that developed around the ‘old’ provisions.

The last reason invoked by Justice MacDonnell, related to the previous one, was that to the extent that the new self-defence provisions have changed the law, they have done so in favour of the accused. They did not deprive anyone of a vested right, as legislation which courts in past cases refused to apply retroactively typically had. This suggested that the usual presumption against giving legislation retroactive effect did not apply with as much force as in these cases, because the main (although not the only) reason for the presumption is fairness, and no unfairness results from applying to a party rules that are as or more favourable than those that would normally have applied to his actions.

That principle has indeed long been recognized, and it is usually accepted that retroactive laws that confer a benefit are much less disturbing from a Rule of Law standpoint than impose or increase a punishment or a burden. However, Jeremy Waldron has pushed back against this intuition in a very interesting paper, arguing that fairness, especially in the narrow sense of “fair warning,” is not all there is to the matter. (Justice MacDonnell recognized this, observing that “the presumption against the retrospective or retroactive application of legislation affecting substantive rights is not only based on considerations of fairness – concerns for stability, certainty and predictability would remain relevant even if fairness were factored out of the analysis” (par. 35).) Prof. Waldron argues that, for one thing, fairness must be understood more broadly, so that while a retroactive law that benefits the person to whom it is directly applied is not unfair to that person, it is potentially unfair to others. And, quite apart from fairness, we should also worry about the effect of retroactive legislation on the authority of law as a whole. Knowing that a legal rule can be changed retroactively diminishes the authority of legal rules, regardless of whether the retrospective change is beneficial or punitive.

These arguments are applicable to Pandurevic. In particular, we might argue that, if Justice MacDonnell is right that the new self-defence provision is as much or more favourable to the accused than the old ones, then applying it to his case is “unfair” to his victim, and that this is not an immaterial consideration even though the victim is not a party to the criminal trial in which Mr. Pandurevic is accused. It is perhaps too bad that Justice MacDonnell’s reasons do not address this question.

On the other hand, Justice MacDonnell points to considerations that, although perhaps not very common, arguably make this a proper case in which to depart from the usually sound intuition in favour of prospectivity. The “mischief” which the law which he decides to apply retroactively is meant to cure isn’t just a matter of policy (or, worse, as in the case that prompted prof. Waldron’s article, partisan advantage). It is a failure of the Rule of Law itself. The Rule of Law ideal requires laws to be not only prospective but, just as importantly, clear, accessible, and coherent. It also requires them to be enforced consistently. If Justice MacDonnell’s assessment of the old law of self-defence is correct ― it at least seems supported by a good deal of authority, though I am utterly ignorant in this area and cannot be sure ― then this law failed to meet the requirements of the Rule of Law to a considerable extent. So Justice MacDonnell had to choose not between violating the requirements Rule of Law or not, but between different ways of breaching them. I am inclined to think that he picked the right poison.

Legislation should normally look to and act on the future. But the law itself always looks both forward and back, and not only to past actions of persons, but to its own past. If what it sees in its past is cringe-worthy,  it is appropriate for the law to change retrospectively.

The Limits of Independence

I want to return to the Québec Bar’s challenge against the constitutionality of all the mandatory minimum sentences increased or created by Bill C-10, the “tough on crime” omnibus bill adopted by Parliament earlier this year, about which I blogged here earlier this week. One of the grounds of possible unconstitutionality which the Bar raises in its application is that the new mandatory minimums infringe judicial independence and separation of powers. I think that this argument is badly mistaken.

The Bar argues that judicial independence and separation of powers (which amount to the same thing, because what is at issue here is the separation of the judicial power from the legislative) require that the judiciary enjoy complete autonomy in the exercise of its functions. In particular, the legislative power cannot interfere with “the law courts’ exclusive function of issuing orders based on law and evidence” (par. 92 of the application). In criminal cases, it is the courts’ role to give a sentence based on the evidence and considerations of proportionality, appropriateness and justice. This judicial function is essentially discretionary. Interference with that discretion is therefore an interference with an essential adjudicative function. And, of course, a minimum sentence takes (some) discretion away from the judge. Imposing a minimum sentence oversteps the constitutional boundaries between Parliament and the judiciary. Furthermore, the Bar submits, “this judicial discretion is necessary for judges to be able to deliver just decisions, the very foundation of the courts’ legitimacy” (par. 101).

These arguments prove too much. If they were accepted, not only the minimum sentences at issue in this challenge, but also any legislative interference with sentencing discretion would be constitutionally prohibited. Such an outcome would be neither sound in principle nor justified by the law.

If it were true that separation of powers required judges to have the discretion to set sentences that they deem just and proportional, then no statutory limits on that discretion would be permissible―neither mandatory minimums nor mandatory maximums. If untrammelled discretion in sentencing is constitutionally required, there is no ground on which to distinguish a mandatory minimum from a mandatory maximum. If, say, a judge feels that a man who stole the last piece of bread of a poor little old lady deserved a harsher punishment that the maximum of two years’ imprisonment set out in s. 334 of the Criminal Code for theft under 5000$, he ought, if we follow the Bar’s reasoning, to be constitutionally free to do so, as much as a judge ought to be free to disregard a mandatory sentence of imprisonment and not to send a man to prison for growing a couple of marijuana plants. But the Criminal Code imposes a mandatory maximum punishment for every single offence it creates―and nobody, to my knowledge, ever thought that somehow wrong. I very much doubt that the Bar thinks so. Judicial independence is important, but it does not include the power to make laws; indeed, separation of powers requires that power to be left to the legislature (subject possibly to a role for the judiciary to develop the law―but subject, in turn, to legislative over-ride). And the power to make criminal laws has always included a power to prescribe a penalty. We impose constitutional limits on this power, in particular in s. 12 of the Charter, which prohibits cruel and unusual punishment. But that has nothing to do with judicial independence. Power must be checked and limited. The legislature’s power to change the law―including in ways with which the judiciary might not agree―is probably the most important check on and safeguard against the power of the judges.

The Bar invokes a couple of Canadian cases to support its claims that sentencing discretion is a requirement of judicial independence, but in my view, its use of these precedents borders on bad faith. The first, R. v. M. (C.A.), [1996] 1 S.C.R. 500, concerned the power of an appellate court to vary a sentence imposed at trial. It is in this context that the Supreme Court held that sentencing was discretionary―within the bounds set by the Criminal Code―and therefore subject to deferential review on appeal. This does not prove that Parliament cannot limit the sentencing judges’ discretion. Indeed, the Supreme Court noted that the Criminal Code usually prescribes a maximum punishment and sometimes a minimum, though minimum sentences are sometimes subject to suspicion under s. 12 of the Charter. The other case, Ell v. Alberta,  2003 SCC 35, [2003] 1 S.C.R. 857, concerned the independence of justices of the peace. It mentions the justices’ discretionary powers over bail―not sentencing―a procedure which is thoroughly regulated by the criminal code. The Bar also invokes a Privy Council decision, Liyanage v. The Queen, but that concerned what was effectively a bill of attainder enacted as retribution against specific political opponents. As much as we may detest the government’s “tough on crime” programme, it is a far cry from that.

Mandatory minimum sentences may, in many cases, be cruel, disproportionate, and even irrational. Courts have already struck down a number of provisions imposing them, and are likely to strike down more. But judicial independence has nothing to do with it. The Québec Bar’s arguments on this point are misguided and very weak. I’d be astonished if they were accepted.

A Bar Brawl

The Québec Bar has launched a constitutional challenge against a substantial part of the Conservative government’s “tough-on-crime” agenda, Radio-Canada reports. In an application filed in Québec’s Superior Court, it contends that every provision of the the omnibus criminal law bill, C-10, enacted by Parliament this year as the Safe Streets and Communities Act, S.C. 2012 c. 1, that creates or increases a mandatory minimum sentence of imprisonment is unconstitutional. (A note on terminology: I, for one, do not wish to play the government’s game by using the tendentious and self-serving name it chose for this piece of legislation, so I will refer to it as bill C-10, even though, the bill having become law, this is not strictly correct.)

The grounds for the challenge are summarized at par. 9 of the application. The Bar argues that the mandatory minimums breach s. 7 of the Canadian Charter of Rights and Freedoms, which prohibits deprivations of liberty except “in accordance with principles of fundamental justice,” first, because they are arbitrary in that they bear no relationship to the stated objectives of the legislation, and, second, because they might result in sentences disproportionate to offences. For this reason, some of them also breach s. 12 of the Charter, which prohibits cruel and unusual punishment. Furthermore, says the Bar the mandatory minimums infringe the equality rights of Aboriginal Canadians, protected by s. 15 of the Charter. Finally, they are an intrusion on judicial functions and thus contrary to the principles of judicial independence and separation of powers.

There have been plenty of challenges against specific elements of bill C-10. I have blogged about some of them―my posts on the topic are collected here. But this is a different beast. Rather than an accused challenging the specific provision pursuant to which he is charged, this is an interest group attacking the entire policy of mandatory minimum sentences wholesale―but doing it not in the context of the political debate, but in the courts.

Yet in some ways, the application of claim reads like a political rather than a legal argument. It asserts that

minimum sentences … do not serve the public interest; respond to no real need; do not contribute to protecting citizens; and do not permit the realization of the public safety objective (par. 3; translation mine throughout).

It also points out that the vast majority of Canadians do not feel unsafe because of crime and that both the number and the severity of crimes committed in Canada has long been falling.

For the most part, though, the application elaborates the four grounds of unconstitutionality listed above. I will not discuss them in detail here. I canvassed some of the applicable principles in previous posts dealing with challenges to elements of bill C-10, and I might return to the substance of the Bar’s arguments in future posts, especially to the claims about judicial independence and separation of powers. For now, I want to say a couple of things about the challenge as a whole.

One question I want to address is whether the Bar has standing to bring a challenge of this sort. Of course, it is not accused of any crime. It argues that, nevertheless, it has “public interest” standing to bring this application in accordance with the principles set out by the Supreme Court in its recent decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, which I summarized here. (Another explanation of the decision, by Pivot Legal, which represented the respondents, is here.) In that case, the Supreme Court held that public interest standing should be granted when “in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (par. 37). In particular, courts should consider a would-be plaintiff’s “capacity to bring forward a claim,” the possibility that the litigation would bring before the courts an issue affecting those too disadvantaged to litigate on their own behalf, and the existence of alternative avenues for the issues, and the perspective a would-be plaintiff brings on these issues, to be brought before the court (par. 51). The Bar argues that its challenge fits these criteria. It is a concerned with rights and liberties, has intervened in a variety of constitutional cases to protect them, and seeks to have the constitutionality of the mandatory minimums determined at once, in order to prevent the potential violation of the rights of a great number of accused.

That may indeed be so, but I do not think that the Bar’s challenge is comparable to that which the Supreme Court allowed to go ahead in Downtown Eastside. Unlike in that case, there seems to be no special difficulty in bringing constitutional challenges against mandatory minimum sentences by the traditional route―by individuals who stand accused of crimes conviction of which carries a mandatory minimum sentence. Indeed, many such challenges have already succeeded or are working their way through the courts. Now the existence of alternative routes by which a constitutional challenge can be brought is not dispositive, the Supreme Court said in Downtown Eastside. But there are other differences too. In that case, the Court emphasized the fact that the challenge was to the entire scheme Parliament adopted to regulate prostitution; such a wholesale challenge gives the court a much more complete picture than piecemeal attacks on individual provisions. Here, although the challenge aims at a large number of similar provisions, they are really quite disparate, and not part of a single scheme attempting to respond to one social problem. Finally, a crucial point about the Downtown Eastside challenge is that the groups bringing it are able to marshal substantial evidence to support their claims, evidence that individual accused would be most unlikely to bring to bear on their cases, and which is likely to be essential to the challenge’s chances of success. Here, the Bar does not seem to intend to bring any sort of evidence that would not be accessible to an accused. Its application relies largely on past decisions of courts, including for examples of cases where the new mandatory minimum sentences would have been disproportionate, rather than on social science or testimony which it would be uniquely well-positioned to gather, as the respondents in Downtown Eastside.

This brings me to the second point I wanted to make. The Bar’s challenge ill suits the very nature of the judicial review of legislation as it is understood in Canadian law. Judicial review of legislation in Canada normally happens in the context of specific disputes, with a set of facts to which the court can look to appreciate the effect of the legislation it is reviewing in real life. Of course, the facts of the case tend to be no more than a starting point; courts must also think beyond them when evaluating the constitutionality of legislation. Nevertheless, they often insist, and rightly so, on the importance of a “factual matrix” for adjudication. Adjudication, after all, is application of the law to a set of facts. It might involve other things too, like the development of the law, but at a minimum, it is that. The Bar’s challenge to the constitutionality of mandatory minimum sentences is abstract. It is a shortcut. Its very raison d’être is to avoid waiting for the relevant facts to arise. That’s not how judicial review is supposed to work.

My two cents is that the Bar’s challenge to mandatory minimum sentences will fail because the Bar does not have standing to bring it. And so it should. This is not to say that mandatory minimum sentences are a good idea, or even constitutional. But they should be challenged in real cases, as indeed they are already being all over the country.