Sentencing Judgment Found Inside a Chinese Fortune Cookie

The sentencing judgment in the Québec City mosque shooter’s case is badly flawed

This post is co-written with Maxime St-Hilaire

The sentence imposed on the accused in R v Bissonnette, 2019 QCCS 354 for murdering six worshippers at a Quebec City mosque, and injuring, in many cases grievously, multiple others is striking: life imprisonment, as for all murderers, and no possibility of parole for 40 years. This is one of the longest periods of parole ineligibility in Canadian history, and thus one of the heaviest sentences imposed since the abolition of the death penalty. Yet equally striking, and in our view insufficiently discussed (in English anyway), is the reasoning of the Québec Superior Court judge who imposed this sentence―and re-wrote the Criminal Code in order to do so.

At the heart of the decision is section 745.51 of the Criminal Code, which since 2011 has authorized―but not required―judges to stack parole ineligibility periods for persons convicted of multiple murders. The Crown invoked it and asked for Mr. Bissonnette to be subject to six consecutive 25-year periods, thus theoretically making him eligible for parole after 150 years. The defence argued that such stacking would be unconstitutional, and that Mr. Bissonnette’s periods parole ineligibility should run concurrently, as they would have before 2011, potentially making him eligible for release in 25 years.

Having reviewed the harrowing facts, Justice Huot takes the view that neither of these positions is just. On the one hand, courts ought not to “sink into excess by imposing punishment that impresses the media but is, all told, of little real significance”. [758; translation ours here and throughout] On the other, “the needs for denunciation, deterrence, and incapacitation are so pressing in this case that the imposition of six concurrent ineligibility periods would bring the administration of justice into disrepute”. [766] According to Justice Huot, justice requires that Mr. Bissonnette be ineligible for parole for more than 25 years―but less than 50. Yet section 745.51 dictates that if ineligibility periods for those guilty of multiple first-degree murders are going to be stacked, they must be stacked in full; that is to say, by increments of 25 years (the mandatory period for one such murder), on the premise that the lives of all victims are of equal value.

However, Justice Huot finds that section 745.51 is unconstitutional. In his view, it is a violation of the constitutional protections against cruel and unusual punishment (section 12 of the Canadian Charter of Rights and Freedoms) and against deprivations of liberty and security of the person not in accordance with principles of fundamental justice (section 7 of the Charter). And having so found, Justice Huot takes it upon himself “to modify … existing law” [1173] to grant himself the power to sentence Mr. Bissonnette in the exact way he thinks just.

We think that Justice Huot’s conclusions on section 12, section 7, and the remedy are all fatally flawed. His opinion is, moreover, petty (to the point, as we suggest below, of possible illegality), and lacking in rigour (even misspelling Chief Justice McLachlin’s name on a couple of a occasions). For all its prodigious length and academic, even literary, pretension, the judgment is a failure of scholarship as well as of judicial craft. We cannot comprehensively summarize Justice Huot’s reasons here, but will try to highlight their most significant defects.


Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. Justice Huot argues that

it would be disproportionate, cruel, and contrary to Canadian society’s values of justice and compassion to deny an individual who has, since his teenage years, suffered from mental health problems all hope of gaining his freedom back, if only for a few years, regardless of how abominable his crimes were. Canada is not a land where the most undesirable elements of the community are shut in a gaol and their very existence forgotten, the key of their liberty having been thrown into the river of a vast collective indifference. [845]

Of course, section 745.51 didn’t require Justice Huot to impose what he regards as a cruel sentence. It says that parole ineligibility periods can be stacked―not that they must be. Like many if not most provisions of the Criminal Code, it made possible the imposition of a maximum sentence that the judge considers excessive in the circumstances of a particular case. That, by itself, should be no reason to hold it to be contrary to the Charter.

The idea that it is cruel to, in effect, sentence a person to die in prison is also perplexing. For Justice Huot, it is nothing short of “sophistry to assert that [multiple murders] should reasonably expect, in a free, civilized, and democratic society, to spend the rest of their days behind bars, any endeavours at rehabilitation notwithstanding”. [975] Indeed, he asserts that “Canadians would consider as ‘odious and intolerable’ any sentence denying the accused a reasonable chance at conditional release in the last years of his life”. [982] Yet depending on the offender’s age, a fit and just sentence, even for a lesser crime than a hate-driven massacre, may have such a consequence. Does it, for that reason, become unconstitutionally cruel? As for Canadians, a clear majority of them apparently thought the actual death penalty “morally right” just a few years ago. To be clear, this isn’t to say that this majority is itself right. But Justice Huot has no way of knowing that popular opinion has changed. He is, we are afraid, simply making things up.

Indeed, it is difficult to avoid the impression that Justice Huot’s reason for invalidating section 745.51 have to do not so much with the risk of cruelty to the man before him, but with what he regards as “the credibility of the justice system”. [846] Justice Huot is adamant that “a simple period of 25 years of parole ineligibility of 25 years would be utterly unreasonable and disproportionate in the circumstances”. [880] That may be the case (though Parliaments from the 1970s to 2011 had not thought so), but a disproportionately lenient sentence, unlike an excessively harsh one, is not a constitutional violation. The constitution protects individuals from excessive punishment by the state, not society against insufficiently punished offenders. Justice Huot argues that it is imperative “that Parliament leave sufficient discretionary powers to the courts for them to impose on offenders sentences that” [846] will be just in all the circumstances. But, while this this argument may be sound policy, it has nothing to do with preventing cruel and unusual punishments.


Things do not get better as Justice Huot moves on to discussing section 7 of the Charter, which provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. There is little question that, by allowing the imposition of addition parole ineligibility, section 745.51 implicates the right to liberty. But is it also not in accordance with the principles of fundamental justice?

Justice Huot thinks so. Indeed, he identifies three such principles that he thinks are being infringed. The first one is the prohibition on overbreadth. Section 745.51 is overbroad, says Justice Huot, because it makes it possible for a judge to impose a 50- or 75-year parole ineligibility period on a multiple murderer who would, all things considered, only deserve 30 or 40. Again, Justice Huot insists that not imposing an excessive ineligibility period in such cases is no solution, because “it is simply unrealistic to believe that sentences of 25, 50, or 75 years of ineligibility will always be proportional”. [1051]

Second, Justice Huot says that section 745.51 infringes the prohibition on gross disproportionality, as do all punishments found to be cruel and unusual.

And, not content with these findings, Justice Huot goes on to hold that section 745.51 infringes a third principle of fundamental justice: human dignity. Now human dignity has never been recognized (or, to be fair, rejected) as a principle of fundamental justice for the purposes of section 7 of the Charter. This is no problem for Justice Huot, who breezes through the test for recognizing a new such principle. Dignity, he says, is a legal principle, because it has been recognized as a value underlying the Charter and received “express mentions in the Canadian Bill of Rights and in international agreements”. [1098] Similarly, it is the subject of a broad consensus. And as for whether respect for human dignity is a sufficiently specific criterion to assess infringements of the rights protected by section 7, Justice Huot dismisses the question in a couple of sentences: “Human dignity is a well-known legal principle. It characterizes human beings ‘in their universality’. This concept is sufficiently precise to be considered a ‘manageable standard’.” [721; references omitted].

Justice Huot’s reasoning on overbreadth is dubious, to say the least. Overbreadth more naturally describes the prohibition of conduct that should not be prohibited (because it is unrelated to the prohibition’s purpose) than to excessive punishment, which should be treated under the rubric of gross disproportionality. Moreover, his findings on both of these principles disregard the fact that the issue, under section 7 of the Charter, is whether section 745.51 may force a sentencing judge to deprive an offender of liberty contrary to fundamental justice―not whether it may prevent the judge from imposing a sentence that is exactly proportional to the crime.

But it is the casual recognition of human dignity as a principle of fundamental justice that’s most astonishing. Put to one side the question of whether an underlying or preambular value is properly characterized as a legal principle. Recall, simply, that the Supreme Court struggled for the better part of a decade to integrate human dignity into its equality jurisprudence, and gave up―recognizing in R v Kapp, 2008 SCC 41 [2008] 2 SCR 483 that “human dignity is an abstract and subjective notion”, “confusing and difficult to apply”. [22] Justice Huot, of course, ignores this. To him, the cryptic reference to human universality is guidance enough.    

Needless to say, Justice Huot’s entire section 7 discussion is an obiter, since he has already found section 745.51 a violation of section 12 of the Charter; the discussion of human dignity, doubly so, since he already finds a section 7 infringement on account of overbreadth. A prudent judge would not venture into uncharted and choppy jurisprudential waters without the need to do so. Justice Huot, however, is not such a judge.


Having (unsurprisingly) found that there is no justification under section 1 of the Charter for what he considers cruel and unusual punishment and a violation of principles of fundamental justice (and made along the way some remarkable comments, to which we shall return), Justice Huot turns to the question of the remedy. This is probably the most astonishing part of his judgment. Without having been asked to do so by either party, and without having given them the opportunity to at least make submissions on the matter, Justice Huot decides not to just invalidate section 745.51 but to re-write it so as to grant judges―starting, of course, with himself―the discretionary power to craft what they see as appropriate sentences with parole ineligibility periods of more than 25 but less than 50 years.

In the section 1 part of his reasons, Justice Huot notes that this very possibility was debated and rejected by Parliament. But he does not think that there is anything wrong with him writing a law that Parliament did not want. Democracy, he says, is not just majority rule: “It implies a legal framework that, like the Charter, protects the rights and liberties of citizens. Hence judicial review must be seen as democracy’s faithful ally. … When they intervene in the name of the Charter, judges do not act against democracy, but in conformity with it.” [1169] Moreover, having rejected Blackstone’s declaratory theory, “our common law tradition favours progressive amendment that support the adaptation of existing legal rules to new views and practices”. [1176] The re-writing of section 745.51 is, all in all, an obvious thing to do, and there is no need to go back to Parliament for its views on the matter.

This is a power grab. Justice Huot claims, in effect, that democracy and a “modern” conception of the common law allow judges to re-write statutes, so long as they do so “in the name of the Charter”. But while judicial review may be consistent with democracy (though certainly not “implied” by it―unless Justice Huot thinks that, for example, Australia and New Zealand, both of which lack strong-form rights-based judicial review, are not democratic countries, and that Canada was not one until 1982), it simply does not follow that democracy justifies whatever a court engaged in judicial review might do. As for the common law, whatever its exact nature (and there is much more to be said for the declaratory theory than Justice Huot is aware of), it provides no authority for judges to re-write legislation, as opposed to developing judicially-articulated legal rules. Besides, Justice Huot’s re-writing of section 745.51 has nothing to do with accommodating “new views and practices”; it simply imposes a view that Parliament considered and rejected.

Now, there is a debate to be had about the appropriate judicial role in the face of unconstitutionally underinclusive legislation. It is at least arguable that courts can (sometimes) remedy underinclusion by making an obvious addition to the statute. But, to repeat, Justice Huot is not here dealing with an underinclusive provision. There is nothing unconstitutional, though there is arguably something unjust, about not imposing longer parole ineligibility terms on those guilty of multiple murders than single ones. Justice Huot’s job was to remedy what he, rightly or wrongly, saw as unconstitutionality―not to rectify injustice. He did what he wanted to do, not what he was appointed to do.


Beyond these specific mistakes, the overall tone of Justice Huot’s reasons deserves some comment. Justice Huot starts off with a reverse bench-slap directed at the Supreme Court and its decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 (is that a reverse bench-slap per saltum?), snidely commenting that “in these times when the abrogation of judicial delays seems to have been exalted to the rank of a cardinal virtue, it is not superfluous to recall that the very idea of ‘justice’ fits poorly with the clamour and the zeitgeist”. [7] He dishes it out to the American legal system for its reliance on life imprisonment without parole and insists that “Canada remains a country proud of its origins and attached to the preservation of its moral, social, and legal values, which differ in many ways from those of other jurisdictions”. [978] But whatever his pride in the Canadian legal system, Justice Huot doesn’t seem to think very highly of his colleagues who, unlike him, have seen it fit to impose consecutive parole ineligibility on multiple first-degree murderers. The accusation of sophistry, referred to above, is levelled at one of them. More generally, Justice Huot’s insistence that the discretionary power not to stack ineligibility periods, which section 745.51 maintains, is not enough to make it constitutional seems to result from his desire to prevent other judges from imposing sentences that he considers unjust, even though they do not.

Most remarkable, however, is Justice Huot’s attitude towards Parliament. It is not just that, as explained above, he deliberately re-writes the law he has found unconstitutional in a manner that was specifically put before, and rejected by, the legislature. More than that, he comments on what various members of Parliament said in the course of this debate, in a manner that sits uneasily, to put it mildly, with article 9 of the Bill of Rights, 1688, which provides “[t]hat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This is usually known as the foundation of the rule that what is said in Parliament cannot be made subject to criminal or civil liability, but Article 9 has broader separation of powers implications too. As the New Zealand court of Appeal put it in Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24, “courts scrupulously avoid” “consider[ing] questions of adequacy, accuracy or propriety in the proceedings of Parliament”. [124] Canadian courts, it is fair to say, have long been less scrupulous than they might be about this. Still, Justice Huot’s play-by-play commentary on Parliamentary debate, praise for “[o]pposition members [who] did their job”, [1146] denigration of a government member’s answer as being of “dubious intelligibility” [1137] and of the Parliamentary majority as a whole for its “wilful blindness” [1146] in the face of opposition warnings are quite beyond the pale.

And in addition to denigrating others, Justice Huot devotes a rather unseemly amount of energy to puffing himself up. He discusses and critiques Kant and Bentham, Beccaria and Blackstone―the latter based entirely on secondary sources―and misses no opportunity to wax eloquent. When the Crown points him to cases where his colleagues imposed consecutive ineligibility periods, he retorts that “such a mathematical reasoning can only lead us to the bounds of immoderation, or even a litany of jurisprudential precedents each as aberrant as the next in their repudiation of the most elementary rules of logic”. [640] The prospect of an offender never being able to seek parole is tantamount to “exile … in a prison environment, outside any civilized society”. [1073] But perhaps the best (if that’s the word) such passage comes, predictably, when Justice Huot discusses human dignity, and informs us that

In a foreseeable future, courts will have to confront especially sensitive questions, such as euthanasia, medical assistance in dying, genetic manipulations, and other bioethical questions. Science progresses at meteoric speed and ceaselessly presents new challenges to philosophers, legislators, and lawyers. Any analysis requiring reflection on the essence of human beings and their rights to life, liberty and security inevitably requires taking into account their dignity, lest it dehumanize them. [1100]

This is reminiscent of the notorious musings of Justice Kennedy, another human dignity devotee, on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. But Justice Huot’s reasons, which begin with a supposed Confucius quotation as an epigraph, bring to mind notorious line from a US Supreme Court’s decision―Justice Scalia’s quip about “the mystical aphorisms of the fortune cookie”.

Seven’s Sins?

A response to Asher Honickman’s take on the section 7 of the Charter

In a very interesting essay written for CBA Alberta’s Law Matters and published at the website of Advocates for the Rule of Law, Asher Honickman discusses the role of the judiciary in constitutional cases, focusing on section 7 of the Canadian Charter of Rights and Freedoms. Mr. Honickman tries to chart a middle course between what he describes as “judicial supremacy” and “legislative supremacy” ― the views that, respectively, “when it comes to interpreting the Charter … more is better” and judges should expand the scope of its provisions accordingly, and that the Charter as a whole was a mistake. Mr. Honickman’s argument is both rich and well stated. It is also, in my humble opinion, largely misguided. Because it is both rich and concise, it does not lend itself to an easy summary. I would urge the reader to take his or her time to go through it. For my part, I will respond to some specific points Mr. Honickman makes, over a couple of posts. I will start here with his take on the past, present, and future of section 7 itself.

Mr. Honickman argues that the Supreme Court misinterpreted section 7 from the beginning of its engagement with it in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, expanding its scope well beyond the procedural issues to which it was intended to apply. More recently, the Supreme Court expanded section 7 further by recognizing principles of fundamental justice which not particularly fundamental or even particularly legal. Moreover, the Court unjustifiably relaxed the requirement that a section 7 claimant be “deprived” of the rights the provision protects, and accepted findings of deprivation, or infringement, based on “the indirect effects of the law [and] on contentious social science evidence.”

Mr. Honickman concedes that “[r]eturning now to the original meaning [of section 7] would be impracticable, as it would mean erasing more than thirty years of Charter jurisprudence.” He suggests, however, that section 7 be applied only in the context of the administration of justice ― if not to procedural matters, then at least when the impugned rules create an offence. Moreover, “the state action must amount to a real deprivation, which is a higher hurdle to overcome than mere infringement,” and the deprivation must be readily apparent by looking at the law’s “purpose and its immediate legal effects,” without recourse to social science evidence. Finally, principles of fundamental justice must not be added to without caution; in particular, the prohibitions on overbreadth and gross disproportionality are too vague and insufficiently capable of consistent application to qualify.

One of Mr. Honickman’s targets is the tendency of Canadian academics and activists to demand that section 7 be used by courts to force governments to provide all manner of goodies. For example, in Tanudjaja v. Canada (Attorney General), 2014 ONCA 852, the Court of Appeal for Ontario was asked to consider a claim that governments, both provincial and federal, were obliged to implement social programmes to help people access housing. The Court found the claim not to be justiciable, and refused ― rightly, as I have argued. To that extent, I agree with Mr. Honickman: section 7 is, and ought to remain, a shield to protect individuals from the state, not a sword to put to the throat of elected representatives in order to force them to spend money and enact regulations at the behest of interest groups.

Beyond that, however, I do not share Mr. Honickman’s views. I do not think, for instance that the issue of the original meaning of section 7 is as clear as he suggests. In our paper on whether the Supreme Court has actually rejected originalism as a method of constitutional interpretation in Canadian law, Benjamin Oliphant and I argue “that Justice Lamer’s reasoning in Motor Vehicle Reference [was] quite similar to the type of analysis that many (‘new’) originalists would support,” (22) given its close attention to the text and context of section 7. In particular, while Mr. Honickman thinks that Justice Lamer (as he then was) was wrong to ignore the meaning which courts had attributed to the phrase “principles of fundamental justice” in the Canadian Bill of Rights, that phrase was, as Justice Lamer noted, used in an explicitly procedural context in the Bill, rather than as a qualifier of a general guarantee of rights to life, liberty, and security of the person.

Nor am I persuaded that there is a very significant difference between “deprivation” and “infringement” of section 7 rights. A day’s imprisonment would, everyone would agree, constitute a “deprivation” of liberty, but is it really a worse imposition than years without the ability to take elementary precautions imposed by the Criminal Code’s prostitution-related offenses invalidated in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, as Mr. Honickman suggests? I don’t think so. What is, and what is not, a “deprivation” is arguably a matter of degree ― the term used by the framers of the Charter is vague. I agree that it should be taken to refer to somewhat serious interferences, but I’m not sure that the Supreme Court has ever done otherwise.

Nor do I think that we should be distinguishing between “direct” and “indirect” effects of laws whose constitutionality is called into question. Admittedly, as I wrote in my first comment on Bedford,

I think that the Supreme Court conceded too much when it accepted a low, and arguably meaningless, causation standard to find that the impugned provisions caused harm to sex workers. The violence and exploitation which prostitutes suffer are not just “sufficiently connected” ― whatever that means ― to the law. They are its entirely foreseeable consequences.

But while I believe that the Court ought to revise its formulation of the causation standard, I do not think that a notion of “directness” is very helpful. To repeat, the harms caused by the prostitution provisions that gave rise to the constitutional complaint in Bedford were arguably indirect, but real and foreseeable all the same. And while I have, ever since Bedford came out, struggled with some very significant problems that can arise when courts rely on, and indeed expect to be presented with, extensive social science evidence in constitutional cases, I do not think that courts should forswear the use of such evidence, because failure to understand the world in which their decisions apply can cause these decisions to be very badly mistaken.

Finally, I am not persuaded by Mr. Honickman’s criticism of some of the principles of fundamental justice identified by the Supreme Court. The prohibition on gross disproportionality is at least an arguable case ― it certainly involves a measure of subjectivity in its application. But that of overbreadth is a time-honoured legal principle. It is, for instance, a staple of the First Amendment jurisprudence in the United States. Of course, Mr. Honickman is right that identifying a law’s purpose is a somewhat subjective exercise, and that it can potentially be manipulated by judges acting in bad faith, or simply indulging in results-oriented reasoning. But the exercise is a fairly routine one, being at the heart of the application of section 1 of the Charter, and indeed of ordinary statutory interpretation. That it can be done badly does not mean it cannot be done well or should not be done it all. Excessive judicial enthusiasm at identifying principles of fundamental justice is a potential problem for the interpretation of section 7 ― I criticized, for instance, the B.C. Court of Appeal for having pronounced the independence of the bar such a principle, with far-reaching and in my view disturbing implications, though fortunately the Supreme Court did not follow its reasoning. Still, the same could be said of just about any constitutional right. I don’t think that that’s a reason to always construe such rights narrowly.

In short, I am mostly not persuaded by Mr. Honickman’s criticisms of the current section 7 jurisprudence, interesting though they are. While I  share many of his concerns about where that jurisprudence may be headed in the future, I do not think that the way to address them, or to prevent them from becoming reality, is necessarily to reject the current approach, and to narrow down the scope of arguably the most fundamental of all Charter rights. Whatever section 7’s sins, they are not mortal ones.

 

Bullshit in Sentencing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anti-Bullying Law Struck Down

Last week, the Supreme Court of Nova Scotia struck down the province’s recently-enacted anti-cyber-bullying legislation, the Cyber-Safety Act. In Crouch v. Snell, 2015 NSSC 340, Justice McDougall holds that the Act both infringed the freedom of expression protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, and made possible deprivations of liberty inconsistent with the principles of fundamental justice, contrary to s. 7 of the Charter. In this post, I summarize Justice McDougall’s reasons. (At great length, I am afraid, partly because it is important to explain the somewhat complicated legislation at issue, and mostly because the opinion covers a lot of constitutional ground.) I will comment separately.

Although laws against cyber-bullying are often justified by the need to protect young persons (especially children) from attacks and harassment by their peers, the parties in Crouch were adults, former partners in a technology start up who had had a falling out. Mr. Crouch alleged that “Mr. Snell began a ‘smear campaign’ against him on social media.” [22] Mr. Crouch eventually responded by applying for a “protection order” under the Cyber-Safety Act.

The Act, whose stated “purpose … is to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying,” (s. 2) makes it possible for persons who consider that they are being the victims of cyber-bullying (or for their parents and police officers, if they are minors) to apply for an order that can include prohibitions against its target communicating with or about the applicant, or using specified electronic services or devices. The Act defines cyberbullying as

any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social net works, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includ[ing] assisting or encouraging such communication in any way. (Par. 3(1)(b))

While some earlier cases read this definition as including requirement of malice into this definition, Justice McDougall considers that it included not only actions that had a “culpable intent” but also “conduct where harm was not intended, but ought reasonably to have been expected.”[80]

The applications are made “without notice to the respondent.” (Subs. 5(1)) If “the justice determines, on a balance of probabilities, that … the respondent engaged in cyberbullying of the subject; and … there are reasonable grounds to believe that the respondent will engage in cyberbullying of the subject in the future,” (s. 8) he or she can issue a “protection order.” Once an order is granted by the justice of the peace, it must be served on its target. A copy is forwarded to the Supreme Court, where a judge must review the order and confirm it (with or without amendment) if he or she “is satisfied that there was sufficient evidence … to support the making of the order.” (Subs. 12(2)) If the judge is not so satisfied, he or she must “direct a hearing of the matter in whole or in part,” (Subs. 12(3)) at which point the target of the order as well as the applicant are notified and can be heard.

Mr. Crouch’s application resulted in a protection order being granted by a justice of the peace. Reviewing it, Justice McDougall finds that some of Mr. Crouch’s allegations were unsupported by any evidence; indeed, in applying for the protection order, Mr. Crouch misrepresented a perfectly innocent statement made by Mr. Snell as a threat by taking it out of the context in which it had been made. Nevertheless, there was enough evidence supporting Mr. Crouch’s complaint for Justice McDougall to confirm, in somewhat revised form, the protection order that prohibited Mr. Snell “from directly or indirectly communicating with” or “about” Mr. Crouch, [23] and ordering him to remove any social media postings that referred to Mr. Crouch explicitly or “that might reasonably lead one to conclude that they refer to” him. [73] This confirmation was subject to a ruling on the Cyber-Safety Act‘s constitutionality, which Mr. Snell challenged.

His first argument was that the Act infringed his freedom of expression. Remarkably, the government was not content to argue that the infringement was justified under s. 1 of the Charter, and actually claimed that there was no infringement at all, “because communications that come within the definition of ‘cyberbullying’ are, due to their malicious and hurtful nature, low-value communications that do not accord with the values sought to be protected under s. 2(b).” [101] Justice McDougall rejects this argument, since the Supreme Court has consistently held that “[t]he only type of expression that receives no Charter protection is violent expression.” [102] In finding that both the purpose and the effect of the Act infringed freedom of expression, Justice McDougall cites Justice Moir’s comments in Self v. Baha’i, 2015 NSSC 94, at par. 25 :

[a] neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P.F. Sloan when he released “Positively 4th Street”, just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr. Dylan or the newspaper.

(Self was the case where the judge read a requirement of malice into the definition of cyber-bullying. There had, however, been no constitutional challenge to the Cyber-Safety Act there. Incidentally, Self also arose from a business dispute.)

The more difficult issue, as usual in freedom of expression cases, is whether the infringement is a “reasonable limit[] prescribed by law that can be demonstrably justified in a free and democratic society,” as section 1 of the Charter requires. In the opinion of Justice McDougall, the Cyber-Safety Act fails not only the Oakes test for justifying restrictions on rights, but also the requirement that such restrictions be “prescribed by law.”

Mr. Snell argued that the definition of cyber-bullying in the Cyber-Safety Act was too vague to count as “prescribed by law.” Justice McDougall considers that the definition “is sufficiently clear to delineate a risk zone. It provides an intelligible standard” [129] for legal debate. However, in his view, the same cannot be said of the requirement in section 8 of the Act that there be “reasonable grounds to believe that the respondent will engage in cyberbullying of the subject in the future.” Justice McDougall finds that “[t]he Act provides no guidance on what kinds of evidence and considerations might be relevant here [and thus] no standard so as to avoid arbitrary decision-making.” [130] While risk of re-offending is assessed in criminal sentencing decisions, this is done on the basis of evidence, rather than on an ex-parte application that may include only limited evidence of past, and no indication of future, conduct. Here, “[t]he Legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances,” which is likely to result in “arbitrary and discriminatory applications.” [137]

Although this should be enough to dispose of the case, Justice McDougall nevertheless goes on to put the Cyber-Safety Act to the Oakes test. He concludes

that the objectives of the Act—to create efficient and cost-effective administrative and court processes to address cyberbullying, in order to protect Nova Scotians from undue harm to their reputation and their mental well-being—is [sic] pressing and substantial. [147]

However, he finds that the ex-parte nature of the process created by the Cyber-Safety Act is not rationally connected to these objectives. While proceeding without notice to the respondent may be necessary when the applicant does not know who is cyber-bullying him or her, or in emergencies, the Act requires applications to be ex-parte in every case. It thus “does not specifically address a targeted mischief.” [158]

Nor is the Act, in Justice McDougall’s view, minimally impairing of the freedom of expression. Indeed, he deems “the Cyber-safety Act, and the definition of cyberbullying in particular, … a colossal failure” in that it “unnecessarily catches material that has little or nothing to do with the prevention of cyberbullying.” [165] It applies to “both private and public communications,” [165] provides no defences ― not even truth or absence of ill-will ―, and does not require “proof of harm.” [165]

Finally, Justice McDougall is of the opinion that the positive effects of the Cyber-Safety Act ― of which there is no evidence but whose existence he seems willing to “presume[]” [173] ― do not outweigh the deleterious ones. Once again, the scope of the definition of cyber-bullying is the issue: “[i]t is clear that many types of expression that go to the core of freedom of expression values might be caught” [175] by the statute.

In addition to the argument based on freedom of expression, Mr. Snell raised the issue of s. 7 of the Charter, and Justice McDougall addresses it too. The Cyber-Safety Act engages the liberty interest because the penalties for not complying with a “protection order” can include imprisonment. In Justice McDougall’s view, this potential interference with liberty is not in accordance with the principles of fundamental justice ― quite a few of them, actually. The ex-parte nature of the process the Act sets up is arbitrary, since as Justice McDougall already found, it lacks a rational connection with its objective. The statutory definition of cyber-bullying is overbroad, for the same reason it is not minimally impairing of the freedom of expression. The “requirement that the respondent be deemed likely to engage in cyberbullying in the future is incredibly vague.” [197] Moreover, “the protection order procedure set out in the Cyber-safety Act is not procedurally fair,” due mostly to “the failure to provide a respondent whose identity is known or easily ascertainable with notice of and the opportunity to participate in the initial protection order hearing.” [203] Finally, Justice McDougall adopts Justice Wilson’s suggestion in R. v. Morgentaler, [1988] 1 S.C.R. 30, that a deprivation of a s. 7 right that is also an infringement of another Charter right is not in accordance with the principles of fundamental justice. The Cyber-Safety Act infringes the freedom of expression, which “weighs heavily against a finding that the impugned law accords with the principles of fundamental justice.” [204] As with the infringement of the freedom expression, that of s. 7 is not justified under section 1 of the Charter.

As a result, Justice McDougall declares the Cyber-Safety Act unconstitutional. The statutory scheme is too dependent on the over-inclusive definition of cyber-bullying for alternatives such as reading in or severing some provisions to be workable. The declaration of unconstitutionality is to take effect immediately, because “[t]o temporarily suspend [it] would be to condone further infringements of Charter-protected rights and freedoms.” [220] Besides, the victims of cyber-bullying still “have the usual—albeit imperfect—civil and criminal avenues available to them.” [220]

I believe that this is the right outcome. However, Justice McDougall’s reasons are not altogether satisfactory. More on that soon.

Safety, First

Yesterday, the Ontario Court of Appeal issued an interesting decision in R. v. Michaud, 2015 ONCA 585, a test case challenging the constitutionality of regulations requiring trucks to be equipped with a speed limiter that prevents them going faster than 105 km/h. The Court found that the regulations infringed the truckers’ right to the security of the person, and were overbroad and thus contrary to section of the Canadian Charter of Rights and Freedoms. However, the Court held that this violation of section 7 is saved by section 1 of the Charter.

This is a most unusual result, and the Court itself is well aware that it is an anomaly. Indeed, it Justice Lauwers, the author of the Court’s unanimous opinion, offers some observations for why the s. 7 framework he felt bound to apply might not have been suited to the case. While I am not sure that the Court’s conclusion under s. 7 is correct, its reasons deserve careful consideration, because they engage thoughtfully with a number of issues that are likely to be important on the years and perhaps decades to come.

* * *

The main argument for the unconstitutionality of the speed limiter requirement was that in some situations it may be necessary for a truck driver to accelerate in order to get out of a dangerous situation, and that insofar as the limiter prevents him from doing so, it compromises his safety, and thus his constitutionally protected “security of the person.” In addition, it was said that forcing trucks to move more slowly than other vehicles on the road was a source of inherent danger. The government, for its part, argued that speed limiters serve “to reduce greenhouse gas emissions, to reduce the severity of collisions, and to prevent accidents.” [7] Both the defence and the prosecution also submitted expert reports detailing the speed limiters’ alleged dangers and benefits.

In applying section 7 of the Charter, the Court of Appeal stressed that, under the framework set out by the Supreme Court in  Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, the concern at this stage of the analysis is with “the relationship between the individual claimant and the law,” not “the relationship between the private impact and the public benefit of the law.” [62] If the law has an impermissible effect on the claimant, then it infringes s. 7, and its “public benefit” can only be considered at the s. 1 stage of the analysis. The Court considered itself bound, “[o]n a strict and literal reading of Bedford,” to conclude that the regulations do indeed endanger truck drivers in an overbroad way. They prevent a truck driver “from accelerating beyond 105 km/h in all situations where it is needed to avoid collisions,” [73] compromising his security. “For those in such a situation,” the Court holds, “the law contradicts its own purpose of improving highway safety; for them the legislation is overly broad and operates in an arbitrary manner.” [74]

The Court then turns to s. 1. It begins by observing that, in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the Supreme Court recognized that it might be possible to justify violations of s. 7 by reference to the “public good,” which is not considered in an analysis under that provision. “This,” the Court says, “is one such situation. More are predictable” [83] due to the exclusion of the beneficial effects of the impugned law from consideration under s. 7.

The Court then proceeds to discuss safety regulations and risk management at some length. It notes that “[s]afety regulation often sets bright line rules, rather than standards,” [88] which makes for greater legal certainty. The trouble is that such rules will both allow behaviour that contradicts their purpose to happen, and penalize behaviour that isn’t actually inconsistent with their aims. The substance of each rule is also subject to a cost-benefit analysis. The more stringent a safety rule, the more accidents and deaths it will prevent; but the more onerous compliance with it will be. Designing an optimal rule is necessarily a trade-off between safety and efficiency, complicated by the uncertainty of the relevant science and lack of experience. And however the balance is ultimately struck, it will always be the case that “the regulator countenances the possibility that someone participating in the regulated activity will be put at risk of injury or even death” [98] by not making the regulation stricter than it is. As a result, the Court cautions, “much safety regulation, if it falls to be assessed under the singular approach required by Bedford, would be seen to be inconsistent with security of the person under s. 7 of the Charter.” [99] An additional complication results from the choice between ex-post regulation of conduct by means of imposing penalties for infringing a rule and ex-ante regulation, as in this case, that makes infringement impossible. Ex-ante regulations are an application of the “precautionary principle,” which the Supreme Court has endorsed in the context of environmental law, but they are more likely to be over-inclusive and thus overbroad in a way contrary to s. 7. The takeaway from this discussion is an insistence that, in view of the complexities of regulatory design and the expertise that goes into it, and also considering that what is at issue is a regulatory rather than a criminal offence, courts ought, as in administrative law, to defer to legislative decisions.

Applying at last the s. 1 framework to the speed limiter requirement, the Court concludes that its safety objectives are pressing and substantial, considering “[t]he daily carnage on our roads.” [115] The requirement is connected to these objectives, because of “the link between speed and the severity of collisions.” [119] It is also minimally impairing ― in sense of being well within the realm of reasonable regulatory choices to which courts ought to defer. Even though the ban on speeding by trucks is “absolute,” the legislature was entitled to conclude that its safety objectives demanded no less. The choice of the figure at which the limiter must be set is also something on which courts ought to defer to the regulators. Finally, the positive effects of the limiter outweigh the negative ones, which only arise in a very small fraction of cases.

Before concluding, the Court offers its “reflections” on what it sees as the defects in the analytical framework it saw itself bound to apply. In its opinion, neither the trade-off between maximum safety and efficiency nor the choice of (occasionally over-inclusive) rules over standards “truly engage either deprivation of security of the person or the constitutional principles of fundamental justice; the idea that they do risks trivializing these concepts.” [149; footnote omitted] The Court suggests that the Supreme Court’s definition of overbreadth might itself be overbroad, and that treating any negative impact on a person’s security interest as a “deprivation” within the meaning of s. 7 allows violations to be made out too easily. Its proposed solution “is to recognize them as a distinct category of legislation,” [151] for which societal effects would be taken into account at the s. 7 stage.

* * *

As I have suggested above, I’m not entirely sure that the Court’s s. 7 analysis is right. Mostly I wonder whether the Court is right to conclude that security of the person is actually engaged. The way it describes the evidence, there doesn’t seem to be much if any proof that any situations where we know that accelerating past 105 km/h actually occurred. The Court is content to infer that from the finding by the court below on the basis of a study, “acceleration was used in fewer than two per cent of traffic conflicts to avoid potential crashes” [23] ― which the court then recasts a conclusion that “acceleration to avoid collisions is needed in about 2% of traffic conflicts.” [73] But, for one thing, that an “evasive manoeuvre” was used doesn’t show, it seems to me, that it was needed and there were no alternatives. For another, as the Court itself points out, we don’t know the actual speeds at which these incidents occurred.

In short, unlike in cases like Bedford, where social scientific evidence was used in addition to stories of actual people affected by the impugned legislation, here, the case seems to be based purely on statistical guesswork. To be sure, there was, apparently, some “anecdotal” evidence from the accused himself, but the Court does not even mention it in its analysis. Whose security was affected? To what extent? Was there a more than de minimis negative impact, much less a deprivation? I’m not sure the Court has answers to these questions.

This case is most interesting, however, for the broader issues it raises. Is the Court right that the approach to section 7 set out in Bedford is not suited to analyzing the constitutionality of safety regulations? Is its proposed solution to this problem the right one? What role should the courts play in such cases? I will address these questions, and others, in a separate post later this week. In any event, unless the Supreme Court takes up this case, if Ontario regulators want to put safety first, they’ll have to rely on the Charter’s section 1.

Commitment Issues

The Supreme Court has released its judgment in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, holding that some of the obligations which federal legislation intended to combat money-laundering and the financing of terrorism cannot be constitutionally applied to lawyers. It thus (largely) confirmed the decision of the British Columbia Court of Appeal in  Federation of Law Societies of Canada v. Canada (Attorney General), 2013 BCCA 147 ― but not its reasoning, which had elevated the “independence of the bar” to the status of a principle of fundamental justice protected by s. 7 of the Charter. Having denounced that reasoning as “disturbing,” I am happy to see the Supreme Court reject it, although even its narrower decision is open to some criticism.

The Federation of Law Societies challenged two sets of provisions. One allowed for warrantless searches of lawyers’ offices in the pursuit of information related to money laundering and terrorism financing, with limited protections for solicitor client privilege. The other imposed substantial identity-verification and record-keeping requirements on legal professionals. Neither, the Supreme Court found, could stand up to constitutional scrutiny.

The search provisions, it unanimously found, were in breach of s. 8 of the Charter, which prohibits unreasonable searches and seizures. In Justice Cromwell’s words, the law “authorizes sweeping law office searches which inherently risk breaching solicitor-client privilege,” [35] contrary to the requirements set out in a case decided a dozen years ago, Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61. In particular, there was no notice to the client whose potentially privileged communications with his or her lawyer the government could seek to seize; no opportunity for the client (as opposed to the lawyer), or some independent entity to assert privilege; and no opportunity for a judge to refuse the communication of privileged documents in the absence of a challenge to the communication. Furthermore, the legislation failed to provide that “before searching a law office, the authorities must satisfy a judicial officer that there exists no other reasonable alternative to the search.” [54] These defects made the search provisions unreasonable, and thus contrary to s. 8. Nor could it be justified under s. 1 of the Charter, as the Court had set out some less impairing alternatives in Lavallee ― which Parliament failed to enact.

As for the identification and record-keeping provisions, the Court was also unanimous in finding that they infringed s. 7 of the Charter. All judges agreed that as failure to comply with these provisions exposed lawyers to imprisonment, their right to liberty was obviously engaged. However, they disagreed about the nature of the principle of fundamental justice with which these provisions did not comport.

Importantly, the majority (with which the concurrence does not disagree on this point) does not accept the “independence of the bar” as a principle of fundamental justice. This principle, championed by the Federation of Law Societies and accepted by the Court of Appeal, is capable of very broad application. The federal government argued “that the Court of Appeal’s broad definition of the independence of the bar essentially places lawyers above the law,” [78] a position in which the majority found “considerable merit” [80] although it concluded that it did not need to formally decide the matter. The majority added that although

self-regulation is certainly the means by which legislatures have chosen in this country to protect the independence of the bar … [it did] not have to decide here whether that legislative choice is in any respect constitutionally required. [86]

Rather, for the majority, the principle involved was “that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.” [84] The lawyers’ duty of commitment is, in its view, already a crucial part of the administration of justice in Canada, as part of a broader duty of loyalty, and universally recognized as such. Furthermore, although “this standard is far from self-applying, it has proven to be sufficiently precise to enable the courts to apply it in widely divergent fact situations.” [92] The state, therefore,

cannot impose duties on lawyers that undermine the lawyer’s compliance with that duty, either in fact or in the perception of a reasonable person, fully apprised of all of the relevant circumstances and having thought the matter through. The paradigm case of such interference would be state-imposed duties on lawyers that conflict with or otherwise undermine compliance with the lawyer’s duty of commitment to serving the client’s legitimate interests. [103]

The majority concluded that the impugned legislation did not comply with the principle of fundamental justice it articulated. The legal profession’s self-regulatory bodies have developed standards as to the information that lawyers ought to collect from clients, but the legislation required lawyers to collect much more information than (they thought) necessary in order to ensure ethical and effective representation ― and, potentially, turn it over to the state in breach of solicitor-client privilege. While

[p]rofessional ethical standards … cannot dictate to Parliament what the public interest requires or set the constitutional parameters for legislation[, they] do provide evidence of a strong consensus in the profession as to what ethical practice in relation to these issues requires. [108]

A departure from these standards would create the impression, both in the minds of (reasonable) lawyers and their (reasonable) clients, of a potential conflict with the lawyers’ duty of commitment.

The concurrence (the Chief Justice and Justice Moldaver) thought that respect for that duty is too vague a requirement to amount to a principle of fundamental justice. Because the nature of a lawyer’s duty to his or her client depends on “the nature of the retainer … as well as … other circumstances … [i]t does not … provide a workable constitutional standard.” [119] Instead, the concurrence would have considered the respect of solicitor-client privilege as the principle of fundamental justice involved.

Some of the initial reactions I have seen were also critical of the majority opinion’s recognition of the duty of commitment as new principle of fundamental justice. For my part, I think that Justice Cromwell provides a pretty compelling argument in its defence. That a lawyer ought to be, and appear to be, committed to his or her clients’ interests and to no others’ is surely a well established principle in our legal system, and at least arguably a fundamental one. It would indeed be troubling if the state were able easily to interfere with that duty.

What I find more troubling is the majority’s application of the principle it identifies. Mostly, that’s because, although Justice Cromwell says that standards adopted by professional self-regulatory bodies “cannot … set constitutional” requirements, they seem to have exactly that effect in his reasons. If a requirement that lawyers depart from professional standards is inherently constitutionally suspicious, then I fail to see how the professional standards are not becoming, ipso facto, constitutional ones. And I don’t think that it is right that ethical standards developed by professional regulatory organizations can, by virtue simply of existing, acquire such a status.

I am greatly relieved, however, the the court all-but-rejected enshrining a (potentially) expansive view of the independence of the bar as a constitutional principle. As important as it is for lawyers to have the freedom to zealously represent unpopular clients, including against the government, it is at least not obvious that the cartelization of legal services and consequent impediments to access to justice, in which the self-regulation of the legal profession results, is necessary for this pubic good to be achieved. It is very good news indeed that the Supreme Court has not committed us to that regulatory approach.

Where Credit Is Due

In a recent decision, R. v. Safarzadeh-Markhali, 2014 ONCA 627, the Court of Appeal for Ontario invalidated yet another piece of the federal government “tough on crime” legislative programme, namely subs. 719(3.1) of the Criminal Code, which has the effect of preventing judges from granting enhanced credit for pre-sentence imprisonment to offenders who are not released on bail primarily due to past convictions. (A separate provision of the Criminal Code requires a judge who denies bail to an accused based on his or her criminal history to produce an endorsement to this effect.) Mr. Safarzadeh-Markhali argued that this rule infringed s. 7 of the Charter because it arbitrarily deprived him of liberty. The trial judge agreed, and the Crown appealed, arguing that a mere lack of proportionality did not infringe s. 7, that denials of enhanced credit due to past convictions were not grossly disproportionate, and that in any event they were justified under s. 1 of the Charter.

Writing for the unanimous Court of Appeal, Justice Strathy (as he was at the time of the hearing ― he is now the Chief Justice of Ontario), started by observing that the purposes of the impugned provision and, more generally, of the Truth in Sentencing Act (TISA) of which it was a part were to limit the credit which offenders received for pre-sentence custody, partly to punish them more harshly and partly to remove a perceived incentive to prolong proceedings so as to increase the credit to which they would be entitled, and also to make the process of granting credit more transparent. Justice Strathy also discussed the Supreme Court’s decision in R. v. Summers, 2014 SCC 26 (which I blogged about here), where the Supreme Court held that the TISA had to be interpreted in accordance with the general principles and purposes of sentencing as set out in the Criminal Code, including proportionality (between the offence and the sentence) and parity (of sentences between similarly situated offenders); the Supreme Court specifically referred to the injustice of sentences for similar offences varying depending on whether an offender had been able to obtain bail which, in turn, is often a function of criteria unrelated to the purposes of sentencing.

Turning to the s. 7 analysis, Justice Strathy finds it obvious that subs. 719(3.1) deprives those subject to it of liberty, since it results in longer terms of incarceration. The Crown, remarkably, purported not to concede that point, but the real issue is whether the deprivation of liberty is in accordance with the principles of fundamental justice. The relevant one, he says, is “proportionality in sentencing” (par. 73). It is, he argues,

understood and endorsed by all Canadians and is applied in our courts on a daily basis. … Canadians understand that a sentence must be fair, in all its aspects. The punishment must fit the offence and must fit the offender. (Par. 73-74)

Furthermore, the principle of proportionality in sentencing includes that of parity, the idea that similarly situated offenders should receive similar punishment.

The Crown argued that the relevant principle is not proportionality tout court, but “gross disproportionality.” Indeed, the Supreme Court seemed to suggest as much in R. v. Malmo‑Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571. But Justice Strathy finds that this case is distinguishable, the difference being one between process and result:

the principle of proportionality governs the sentencing process, while the standard of gross disproportionality applies to the result. An offender is entitled to a process directed at crafting a just sentence. (Par. 82)

What this means is that

the principle of proportionality prevents Parliament from making sentencing contingent on factors unrelated to the determination of a fit sentence. In this sense, the principle of proportionality is closely associated with the established principle that a law that violates life, liberty or security of the person cannot be arbitrary. (Par. 85)

Justice Strathy concludes that the denial of enhanced credit to those offenders whose criminal history prevented them from being released on bail infringes the principle of proportionality in sentencing, in that it makes the length of an offender’s imprisonment contingent on factors not relevant at a sentencing stage. He points out that even of two accused persons with identical criminal histories, one may be granted bail while the other will be denied it if the former has stronger community ties or better sureties than the latter. Alternatively, an accused who doesn’t apply for bail in the first place (including because he knows that he couldn’t get it because of his criminal history!) would not actually be denied bail based on his criminal history, and would thus be entitled to enhanced credit. As Justice Strathy points out,

[o]ne effect of s. 719(3.1) will be that the most vulnerable members of society – the poor, those without a support network and Aboriginal people – may be reluctant to exercise their bail rights out of concern that the denial of bail will result in … a greater proportion of their sentence being served in custody. (Par. 95)

In short, subs. 719(3.1)

skews the sentencing process, by making the outcome of the bail process a determinant of the length of the custodial portion of the sentence. But the bail process, and the considerations that go into granting or denying bail, are markedly different from the sentencing process. (Par. 96)

This interference with the sentencing process infringes s .7 of the Charter. While Parliament can choose to impose harsher sentences on repeat offenders, it has gone about it the wrong way:

like many attempts to replace the scalpel of discretion with a broadsword, [subs. 719(3.1)] misses the mark and results in unfairness, discrimination and ultimately unjust sentences. (Par. 101)

As for justifying this infringement of s. 7 under s. 1, Justice Strathy holds that it is not rationally connected to the objective of preventing manipulation of the pre-trial process, since it will prompt accused persons to avoid seeking bail, thus engaging in “the very manipulation the TISA was designed to prevent” (par. 114). Nor is it minimally impairing of offenders’ right to liberty; nor do its (dubious) benefits exceed its real harms.

Needless to say, I like this result. And I think it reflects sound legal principles. As Justice Strathy shows, the denial of enhanced credit to offenders on the basis of a denial of bail results in similarly situated people being punished differently for reasons that have nothing to do with their culpability or the principles of sentencing more broadly, and if that’s not contrary to “principles of fundamental justice”, then it’s hard to imagine what is. At the same time, I wonder about the specifics of Justice Strathy’s reasoning. This is a criticism not of him (or his colleagues on the panel), but of the Supreme Court’s jurisprudence which forced him to engage in some legal contortionism.

It seems to me that the best description of the substantive constitutional problem with subs. 719(3.1) is actually that it is a breach of equality under the law, of the principle that like cases ought to be treated alike. Someone unfamiliar with the Supreme Court’s Charter jurisprudence might think that the natural way of addressing this problem is by invoking s. 15(1) of the Charter, which after all provides that “[e]very individual is equal before and under the law.” But since the Supreme Court has read s. 15(1) as only a protection against discrimination on a fairly narrow category of prohibited grounds, that straightforward argument is foreclosed, and the courts have to import equality under the law through the back door of s. 7 (which limits its applicability to situations where life, liberty, or security of the person are stake).

And then, in the s. 7 jurisprudence, there this concept of “gross disproportionality,” eerily reminiscent of the now-defunct “patent unreasonableness” in administrative law. To get out of the difficulty posed by the fact that some administrative decisions were deeply disturbing without quite appearing “patently unreasonable,” the Supreme Court tried introducing the concept of “reasonableness simpliciter” ― before realizing that the distinction between the two sorts of (un)reasonableness was conceptually bizarre and practically unworkable.

Justice Strathy seems to be trying to do something similar here, being boxed in by the wording of “gross disproportionality” but unwilling to leave an arbitrary law standing. But I’m not persuaded by his distinction between the process and result in sentencing. Does it even make sense to speak of proportionality in relation to process? (In civil litigation, a procedure is said to be proportional or not depending, roughly, on whether the time and resources it requires are proportional to its benefit for the truth-finding process, but here we’re not speaking of the same thing at all ― we’re not asking about extra hearings or something like that.) The distinction seems to be a workaround that allows Justice Strathy to escape an unfortunate but binding precedent, but it only adds to the conceptual complexity of an already messy area of the law.

Given its track record (and its uncompromising position in this case), we can expect the federal government to appeal. And, given in its growing track record in “tough on crime” cases, we can expect the Supreme Court to reject this appeal. I certainly hope it will do so. But I also hope that it will use the opportunity for some clarification of the law.

UPDATE: Michael Spratt comments on the Court of Appeal’s decision ― and points out that there is more of the same to come from the government.