Tag: mandatory minimum

Counter-Rebellion

Judges of the Alberta Court of Appeal question the Supreme Court’s jurisprudence on mandatory minimum sentences

Last month the Alberta Court of Appeal issued an interesting decision that concerned the constitutionality of yet another mandatory minimum sentence, this one in section 244.2 of the Criminal Code, for “intentionally discharg[ing] a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place”. The mandatory minimum is four years’ imprisonment (or more if organized crime is involved). For fairly straightforward rasons given by Justice Antonio, R v Hills, 2020 ABCA 263, upholds the four-year mandatory minimum, rejecting the claim that it is “cruel and unusual” within the meaning of section 12 of the Canadian Charter of Rights and Freedoms.

But in separate concurring reasons Justices O’Ferrall and Wakeling go on to criticize the Supreme Court’s approach for dealing with such cases. Both concurring opinions raise important questions, not only about the correct approach to mandatory minimum sentences under section 12 of the Charter, but also about constitutional interpretation and construction more broadly.

In this post, I summarize Justice Antonio’s lead opinion, as well as the common aspects of the two concurring ones, and explain why I think the Supreme Court is right and Justices O’Ferrall and Wakeling are wrong about section 12. In a follow up post, I shall write in some detail about Justice Wakeling’s opinion, which is startling, and startlingly wrong, in its method and tone, and deserves special attention and criticism.

In R v Smith, [1987] 1 SCR 1045 and, more recently, R v Nur, 2015 SCC 15, [2015] 1 SCR 773, the Supreme Court held that a mandatory minimum sentence that is “grossly disproportionate” to the gravity and blameworthiness of an offence is “cruel and unusual” within the meaning of section 12. Gross disproportionality can be shown either in the particular case or, alternatively ― and controversially ―, in a reasonable hypothetical, a set of circumstances that can be expected to occur and that would be captured by the impugned provision. This is the approach that the accused in Hills took.

Mr. Hills pleaded guilty to having repeatedly fired a rifle “suitable for big game hunting” [4] into the walls and windows of a family residence ― among with less frightening misdeeds, all part of a rampage undertaken in a state that a former Toronto mayor would have described as drunken stupor. The sentencing judge considered that the mandatory minimum would not be grossly disproportionate to his offence, but it could be in a reasonable hypothetical, mainly because the applicable definition of “firearm” captures weapons shown by an expert to be incapable of penetrating a typical building wall. One could therefore reasonably imagine the four-year sentence being imposed on a person who fired a weapon “at a place” whose occupants were not thereby endangered. The judge sentenced Mr. Hills to three and a half years’ imprisonment.

Justice Antonio (with whose reasons Justice O’Ferrall agrees, so far as they go) considers this to be an error. This is because the shots fired even from low-power weapons might “penetrate a door or window”. [80] Moreover, the weapons or the shots might alarm bystanders or the people inside the place at which they are fired, and generally undermine “the feeling the safety in communities”. [82] Justice Antonio also refers to Nur, where

 a 40-month sentence was imposed on a 19-year-old first offender who merely possessed a loaded firearm in a public place for a short period of time and did not discharge it or use it in a threatening manner. If 40 months was an appropriate sentence in the Nur case, then an additional eight months as a mandatory minimum penalty where a firearm was actually used does not amount to a grossly disproportionate sentence.

Justice Antonio concludes that a fit sentence for Mr. Hills would be four and a half years’ imprisonment.

As mentioned above, Justices O’Ferrall and Wakeling both call for the Supreme Court’s decisions in Smith and Nur to be revisited insofar as they require the courts to undertake gross disproportionality analysis based on reasonable hypotheticals, and not only the facts before the sentencing court. Some of the arguments they make are similar. I address them here. Justice Wakeling’s opinion also makes additional points not raised by Justice O’Ferrall. I turn to them below.

The main argument on which Justices O’Ferrall and Wakeling rely is that the use of reasonable hypotheticals to test the constitutionality of mandatory minimum sentences is inconsistent with the import of section 12. Justice O’Ferrall argues that

[a]n interpretation [of the Charter] which relies on the presumed detriment to a non-existent offender if a certain term of imprisonment is imposed is not an interpretation which a citizen would contemplate. It is an interpretation which might legitimately surprise the citizen. It does not flow logically from the text of s.12 of the Charter. [108; see aslo Justice Wakeling’s comment at [126]]

For Justices O’Ferrall and Wakeling, since section 12 protects an individual “right not to be subjected to any cruel and unusual treatment or punishment”, only the situation of the offender before the court can be taken into consideration, and the courts should avoid invalidating provisions that might only hypothetically result in unconstitutional applications. Just as laws are not invalidated because they might be invoked to effect unconstitutional arrests, they should not be disturbed because they might, in some cases, lead to unconstitutional sentences. As Justice O’Ferrall puts it, “[b]ut for the approved reasonable hypothetical analysis, the accused could [sic] care less about the constitutionality of the law. His complaint is with respect to his treatment or punishment”. [109]

Indeed, Justices O’Ferrall and Wakeling reject the test of “gross disproportionality” itself, which the Supreme Court has long used as a proxy for deciding whether a punishment is cruel and unusual. Justice O’Ferrall argues that

A sentence may be disproportionate from the perspective of both the offender and the offence and yet … prescribed to achieve the fundamental purpose of sentencing, namely protecting society. Even a grossly disproportionate sentence may not be found to constitute cruel and unusual punishment if, for example, in order to stem the tide of a deadly pandemic, Parliament found it necessary to prescribe extremely harsh punishments for what otherwise might be regarded as minor misdemeanors. [117; see also Justice Wakeling’s comment at [132]]

I do not think that any of this is right.

Start with the meaning of section 12. The concurring opinions go wrong because they fail to distinguish between the interpretation and the construction of constitutional provisions. Interpretation is the activity of ascertaining the communicative content of the text. Construction is the elaboration of doctrines that allow the text to be given legal effect. Some cases can be resolved at the interpretation stage. As I have argued here, the interpretation of section 12, and specifically of the word “cruel”, can tell us that this provision does not protect corporations. But in other cases courts need to engage in (good faith) construction to apply vague language ― and that of section 12 is vague, if not quite as vague as some commentators would have believe.

The word “cruel” is not infinitely malleable, but it is not self-explanatory either. Unless they are going to rely on seat-of-the-pants impressionistic decision-making in every case, courts need to work out a consistent way to determine whether a given sentence is cruel and unusual. This is an exercise in construction, which is a form of legal reasoning. Unlike in the realm of interpretation, the presumed (actually, purely conjectured) reactions of reactions of citizens are not a useful guide to what the courts should do here. The courts’ task is not to avoid surprises ― the framers of the constitution make a certain degree of judicial creativity unavoidable when they use vague language ― but rather, as Randy Barnett and Evan Bernick have argued, to give effect to the purpose of the provision.

Is the test of gross disproportionality a misguided construction of section 12? In my previous post on that provision’s meaning (linked to above) I have suggested that it is not, so far as the punishment of natural persons is concerned. I wrote that “disproportionality can be a useful indication of cruelty”, provided that “also causes or reflects indifference to suffering”, which may “always be the case with grossly disproportional punishment is inflicted on human beings”. Justice O’Ferrall’s example is ambiguous and does not persuade me. It may be taken to suggest that in the circumstances of “a deadly pandemic” “what otherwise might be regarded as minor misdemeanors” become extremely blameworthy crimes. If so, there is no gross disproportionality in punishing them harshly, so long as the relevant circumstances exist. But if Justice O’Ferrall suggests that a public emergency justifies harsh punishment of unrelated offences, I don’t see how that follows.

If not the gross disproportionality test, is the reasonable hypothetical approach an impermissible construction of section 12? Actually, I think there are very good reasons for the courts to adopt it. Contrary to what Justices O’Ferrall and Wakeling say, a mandatory minimum sentence impacts an offender as to whom it would not be cruel and unusual, albeit indirectly. As Justice Arbour explained in her concurrence in R v Morrisey, [2000] 2 SCR 90,

mandatory minimum sentences … must act as an inflationary floor, setting a new minimum punishment applicable to the so-called ‘best’ offender whose conduct is caught by these provisions.  The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has  committed the offence in the very worst circumstances.  The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [75] 

Justice Wakeling’s own reasons illustrate this dynamic. He breaks down the range of sentences permitted by Parliament into bands for the least and most serious cases, and those in the middle. On this approach, if Parliament enacts or raises the mandatory minimum, the sentences of most offenders, except perhaps the very worst ones, go up. Of course, Parliament is entitled to intervene in sentencing. But the fact that its intervention impacts all offenders means that it is appropriate to consider its constitutionality even in cases where the minimum sentence would not have been cruel and unusual. At the risk of mixing metaphors, I think it’s not an implausible construction of section 12 to say that it does not permit the inflationary floor to be sullied by the cruelty of sentences required to be imposed even on some, albeit not all, offenders.

The other reason for the courts to continue to police reasonable hypotheticals might sound more in policy, but it too is relevant to section 12. It is plea bargaining. A prosecutor can threaten an accused person with a high mandatory minimum sentence so as to secure a guilty plea to some other, less serious offence. By the very nature of such situations, there is no scope for the mandatory minimum to be challenged; indeed the offence to which it is attached never even features before a court. But to the extent that the mandatory minimum has served to secure a guilty plea from a person who might be innocent (or at least might be able to raise a reasonable doubt about his or her guilt), its deployment by the prosecutor is, arguably, a form of cruel and unusual treatment that offends the Charter.

It has been set that the judicial response to the last Conservative government’s “tough on crime” agenda has been nothing less than a rebellion. Justice Wakeling professes himself “extremely troubled by the fact that Canadian courts have been busy striking down Criminal Code provisions that impose mandatory-minimum sentences”. [123] The concurring opinions in Hills are a counter-rebellion of sorts, directed not against Parliament but against the Supreme Court.

But the rebels are wrong. Their approach to constitutional text, which collapses interpretation and construction and oversimplifies constitutional meaning is not compelling. They fail to see the repercussions of mandatory minimum laws that deserve the suspicion with which the courts have treated them. The Supreme Court has often read constitutional provisions ― both power-conferring and rights-protecting ones ― more expansively than it should have. But I am not convinced that this is the case with section 12 of the Charter.

PS: I have neglected blogging on judicial decisions in the last couple of months, and will try to make up at least some of this backlog. If you have a case I should get onto in mind, please do get in touch.

Minimum Agreement

In R. v. Nur, 2015 SCC 15, Supreme Court declared unconstitutional the mandatory minimum sentence Parliament had imposed for the crime of possessing a restricted or a prohibited firearm, either loaded or with ammunition nearby, without the appropriate license. Justices Rothstein, Moldaver, and Wagner dissented, arguing that the majority’s approach to assessing the constitutionality of mandatory minimum sentences for “hybrid” offences ― which can be prosecuted either by indictment or by a summary procedure, in which case a much lighter sentence would be imposed ― was not sufficiently respectful of Parliament.

Some commentators read this dissent as a sign of the existence of a great divide on the Court regarding the respective roles of the judiciary and Parliament, or perhaps of a narrower but still significant philosophical disagreement in the realm of criminal law. For my part, I did not share this view. I argued here that the disagreement between the majority and the dissent in Nur was much narrower than these commentators suggested. The two opinions agreed, among other things, that the imposition of mandatory minimum sentences could produce grave injustices and that such results had to be avoided, even though they disagreed about the most appropriate way of doing so. I believe that a passage from today’s unanimous decision in R. v. Tatton, 2015 SCC 33, are further evidence that all of the Supreme Court’s members are wary of mandatory minimum sentences (which, of course, is not to say that they think them necessarily unconstitutional).

Tatton itself is a “pure” criminal law decision, not a constitutional one. The narrow question it answers is “whether self-induced intoxication is a defence to a charge of arson under s. 434 of the Criminal Code.” [1]  More broadly, the unanimous opinion by Justice Moldaver, the author of the Nur dissent, addresses the issue of the sorts of offences to which intoxication can serve as a possible defence. This, Justice Moldaver explains, mostly has to do with the sort of cognitive activity involved in the commission of the offence. (In a nutshell ― I’m not going to go over the complexities of an issue which, by Justice Moldaver’s own admission, “continues to perplex and confound” [33] ― the more thinking, planning, or knowledge committing an offence requires, the more likely it is that intoxication will be a possible defence.) But some “policy” and justice considerations also play a role.

One such consideration, albeit not the most important one, is “the presence of judicial sentencing discretion.” Justice Moldaver explains that

[i]f the crime is one for which the accused will receive a heavy minimum sentence upon conviction, it may be unduly harsh to preclude consideration of intoxication. However, if the judge has discretion to tailor the sentence to the facts of the case and to consider the accused’s intoxication as part of that assessment, precluding the accused from advancing a defence of intoxication is less worrisome.

To me at least, this seems to suggest that Justice Moldaver, as well as Justices Rothstein and Wagner, his fellow dissenters in Nur, no less than his colleagues who were in the majority in that case, is concerned about the injustices that can result from the application of the mandatory minimum sentences, which deprive judges of the ability to fit the punishment to all the circumstances of the accused and the offence. Indeed, consider what Tatton might mean for some cases where a court might be inclined to impose a moderate punishment on the accused by preventing him from introducing intoxication as a defence but accounting for it at as mitigating his moral blameworthiness at the sentencing stage, but is prevented from doing so by a mandatory minimum sentence. In such cases, Justice Moldaver suggests, the court should rather give the accused a chance to escape punishment altogether by introduce intoxication as a defence than impose the heavy mandatory minimum sentence.

Once again, we cannot draw from this any conclusions about the Supreme Court judges’ views on the constitutionality of mandatory minimum sentences in general. Cases where constitutional questions will be asked will tell more about that. Yet it is quite clear, it seems to me, that all the judges, including those whom some like to describe as more deferential to Parliament, are in agreement that such sentences can have worrisome effects ― and that strong remedies are sometimes necessary to avoid them. Whatever the ultimate answer to the constitutional question, this is something we should take into account when thinking about such sentences as a matter of policy.

Fear-Mongering

Irwin Cotler has table a private member’s bill, C-669, that would give judges the ability to reduce any mandatory minimum sentence provided by the Criminal Code

in any manner that [the judge] considers just and reasonable, taking into consideration the circumstances of the offence, victim and offender, the sentencing principles set out in [the Code], and the interests of justice and fairness.

The bill’s short title is Independence of the Judiciary Act. It is this title that I want to comment on. Despite the respect I owe Mr. Cotler, I consider it to be as misleading as any of the propagandist monikers the Conservative government has given its tough-on-crime legislation.

The bill, quite simply, is not about the independence of the judiciary ― much like the Safe Streets and Communities Act, which introduced some of the many mandatory minimum sentences that Mr. Cotler is trying to push back against, was not really about the safety of Canadian streets and communities, since mandatory minimum sentences do not deter crime and hence do next to nothing to promote public safety. Judicial independence, as the Supreme Court has repeatedly stated, comprises security of tenure, financial security, and administrative independence. C-669 does nothing to enhance any of these aspects of independence. Instead, its title seems based on the assumption that the existence of mandatory minimum sentences is, in itself, an impairment of judicial independence. But that’s not so.

While I’m not a fan of that decision’s take on the Rule of Law, and while even its application of the principle of judicial independence to the statute at issue may be contestable, the Supreme Court’s unanimous opinion in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, does supply what strikes me as a useful statement regarding the respective roles of the judiciary and the legislatures:

[T]he judiciary’s role is not … to apply only the law of which it approves. Nor is it to decide cases with a view simply to what the judiciary (rather than the law) deems fair or pertinent. Nor is it to second-guess the law reform undertaken by legislators … . Within the boundaries of the Constitution, legislatures can set the law as they see fit. [52]

To show that a law interferes with judicial independence,

more is required than an allegation that the content of the legislation required to be applied by that adjudicative role is irrational or unfair, or prescribes rules different from those developed at common law. The legislation must interfere, or be reasonably seen to interfere, with the courts’ adjudicative role, or with the essential conditions of judicial independence. [54]

Even “draconian” laws do not interfere with the “courts’ adjudicative role,” which is “to hear and weigh, in accordance with the law, evidence that is relevant to the legal issues confronted by it.” [50] Needless to say, a mandatory minimum sentence does not prevent a court that must impose it from doing these things. The existence of a legal rule imposed by the legislature that confines the range of orders a court is authorized to issue in a given case does not stop the court from issuing the decision it deems appropriate, within the constraints of that rule. And in the case of criminal sentences, unlike the civil issues with which Imperial Tobacco was concerned, a draconian legal rule can be challenged as unconstitutional.

The words of Chief Justice MacDonald, in the Nova Scotia Court of Appeal’s decision in R. v. MacDonald, 2014 NSCA 102, are also apposite:

in our constitutional democracy, Parliament decides what actions will constitute a criminal offence together with the corresponding range of punishment for each. This may include, in Parliament’s discretion, mandatory minimum sentences for certain offences. In this regard, the will of Parliament shall prevail, unless the sentencing provisions are so severe as to constitute cruel and unusual punishment as prohibited by our Charter of Rights and Freedoms. It then falls to the judiciary, as guardians of the Charter, to prevent such occurrences. (Emphasis mine)

The claim that mandatory minimum sentences interfere with judicial independence is being advanced by the Barreau du Québec in its wholesale constitutional challenge to a variety of such sentences ― with some success, so far, in that both Québec’s Superior Court and its Court of Appeal have seized on it to allow the challenge to go forward, despite the government’s argument that the Barreau did not have standing to pursue it. However, these judgments, right or wrong, did not concern the merits. As I have repeatedly argued, this claim does not stand up to scrutiny.

So much for the law. As a matter of logic, the claim that mandatory minimum sentences interfere with judicial independence fares no better. Mr. Cotler’s own bill actually illustrates this quite clearly. It does not seek to authorize judges to impose sentences in excess of the upper limits decreed by Parliament for each offence in the criminal code. Yet if the concern is that Parliament’s limiting judicial discretion and the ability to impose a “just and reasonable” sentence interferes with judicial independence, that concern ought to be equally applicable to “mandatory maximums” as to “mandatory minimums.”

Mr. Cotler, I conclude, does not really think that limiting the judges’ discretion impose whatever sentence they think fit is inherently wrong. He thinks that mandatory minimum sentences are sometimes unjust, and perhaps also that they are unnecessary and inefficient. He is right about that. (For the most part, anyway; I wonder if he, or anyone else, seriously oppose the mandatory sentence of life imprisonment for murder for instance.) He should rename his bill accordingly. The bill’s current name, like that of so many Conservative bills, particularly in the realm of criminal law, is a propaganda device intended to convey the impression that a grave problem exists when this is not the case, and the bill’s author knows this not to be the case. Such fear-mongering deserves condemnation, whoever it comes from, but it is especially unworthy of an honourable man and great lawyer such as Mr. Cotler.

Nothing Is Always Absolutely So

This morning, the Supreme Court has delivered its decision in R. v. Nur, 2015 SCC 15, striking down as “cruel and unusual,” and therefore contrary to s. 12 of the Charter, a mandatory minimum sentence for the simple possession of a restricted or prohibited firearm that is either loaded or stored with easily accessible ammunition, and not properly licensed, where the offence is prosecuted by indictment. The Chief Justice wrote for a six-judge majority, applying the Court’s long-standing approach, in mandatory minimum s. 12 cases, of inquiring into the “gross disproportionality” of the mandatory minimum sentence not only as applied to the offender challenging it, but also as in other cases. Justice Moldaver wrote a forceful dissent (with the agreement of Justices Rothstein and Wagner), suggesting that while even on the majority’s approach the sentence at issue is not unconstitutional, a different one is required in this case.

* * *

The way to analyze the constitutionality of mandatory minimum sentences is, as the Chief Justice explains, first, “to determine what constitutes a proportionate sentence for the offence,” and “[t]hen, [to] ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence.” [46] The question is, however, for whom must the sentence be proportionate: should the court only consider its proportionality for the actual offender before it, or can consider others? The Court had previously adopted the latter approach, described as relying on “reasonable hypotheticals,” but the various governments that intervened in this case argued that it was inconsistent and unworkable.

Not so, the Chief Justice finds. For one thing, the Charter jurisprudence outside the s. 12 realm supports the idea that a court can and should consider the potential violations of the rights of persons other than those before it in determining the constitutionality of a statute. (Interestingly, the Chief Justice does not cite the recent decision in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, where the majority adopted this approach ― but the concurrence, which she wrote, refused to do so!) And for another, it is possible to analyze the application of s. 12 in “reasonably foreseeable” cases ― that is to say, those whose circumstances can reasonably be said to fall within the scope of the impugned provision, whether they have in fact occurred in the past or not, provided that they are not “remote” or “far-fetched” and, in particular, that they do not involve implausibly angelic offenders.

Here, the Chief Justice finds, the impugned provision is indeed capable of reasonably applying to circumstances in which the mandatory minimum punishment it requires would be grossly disproportionate and therefore cruel and unusual, such as the situation, imagined by the Court of Appeal, “where a person who has a valid licence for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence” [79] (to which the licence does not extend). Such situations would not be “truly criminal” ― instead, they more akin to those normally punished by regulatory offences:

Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes, to be sure. But a three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in … the Criminal Code and legitimate expectations in a free and democratic society. [83]

The Chief Justice then rejects a contention accepted by Justice Moldaver: that the Crown’s ability to prosecute those accused of the offence at issue using a summary procedure that does not attract a mandatory minimum (and indeed provides for a maximum punishment of only one year’s imprisonment) means that the mandatory minimum sentence will not, in practice, be imposed in those cases in which it is disproportionate. According to the Chief Justice, this would take away the “inherently judicial function” [87] of sentencing away from judges, and confer it to prosecutors. While prosecutors should “screen out some offences at the lower end of the spectrum captured” by a provision that gives them the choice between proceeding summarily or by indictment, the fact that they can do so is not enough to insulate the provision from Charter scrutiny. The Chief Justice insists that

one cannot be certain that the discretion will always be exercised in a way that would avoid an unconstitutional result. Nor can the constitutionality of a statutory provision rest on an expectation that the Crown will act properly. [95]

Besides, prosecutors could use the threat of an indictment, and the mandatory minimum that it entails, as a “trump card in plea negotiations.” [96]

Having disposed of some other questions that I skip here, the Chief Justice moves on to the question whether the infringement of s. 12 of the Charter can be justified under s. 1. After observing that

[i]t will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1, [111]

the Chief Justice nevertheless inquires into the existence of a rational connection between Parliament’s objectives and the imposition of a mandatory minimum sentence. Remarkably, she concludes, on the basis of “empirical evidence,” that “[t]he government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes.” [113] Nonetheless, “a rational connection exists between mandatory minimum terms of imprisonment and the goals of denunciation and retribution.” [115] However, the imposition of a mandatory minimum for a broad offence that is known to capture some conduct that is not especially blameworthy is not minimally impairing of the s. 12 right, and thus cannot be justified.

* * *

Justice Moldaver’s dissent denies the appropriateness of the “reasonably foreseeable cases” framework favoured by the majority for assessing the constitutionality of mandatory minimum sentences for “hybrid” offences that can be prosecuted either by indictment or summarily. While he agrees that imposing a harsh mandatory minimum sentence on a person whose offence is of the “licensing” variety would be grossly disproportionate, he concludes that “experience and common sense provide proof positive” that it is not reasonable to expect that this would ever happen. There have been no such cases so far, and prosecutors can be counted on to make sure that there will not be.

Justice Moldaver then makes what seems to be a digression on the topic of “respecting Parliament,” claiming that “[g]un crime is a matter of grave and growing public concern.” [131] He refers to what he describes as “compelling testimony from law enforcement about the devastating impact of gun violence across Canada,” [131] heard by Parliamentary committees, and says that “it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture.” [132] Parliament chose to impose substantial sentences for the possession of “inherently dangerous” unlicensed firearms, while leaving open the safety valve of summary proceedings in some cases where these sentences will prove manifestly unjust. It is entitled to have its way.

In any case, says Justice Moldaver, the better way of approaching cases such as this is not by speculating as to what is and what is not “reasonably foreseeable,” but by asking whether the possibility of summary proceedings is an adequate “safety valve” that can help avoid grossly disproportionate sentences in the unusual, least blameworthy cases. If, as here, it is, then, should the prosecution nonetheless proceed by indictment in such a case, the court can find that this decision amounts to an abuse of process, and impose a sentence below the mandatory minimum by of a remedy under s. 24(1) of the Charter. Because the prosecution’s reasons for proceeding by way of indictment are irrelevant to a finding of abuse of process, this approach provides adequate protection to the offenders for whom the mandatory minimum would be excessive. And as, as the power to find that the indictment was inappropriate and thus an abuse of process rests with the judge, this approach does not amount to a renunciation of judicial control over sentencing.

* * *

On the issue of the analytical framework to adopt in s. 12 challenges to hybrid offences, Justice Moldaver’s argument seems powerful. Why bother with imaginary cases ― whether or not they are “reasonably foreseeable” when there is a “safety valve”? I agree that, on Justice Moldaver’s approach, it is indeed the judge, and not the prosecutor who has the last word on the constitutionality of any sentence to be imposed. And the parallel he makes to the approach the Supreme Court took in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, where the Chief Justice, for a unanimous Court, preferred focusing on the constitutionality of an individualized decision made pursuant to a “safety valve” provision is quite compelling. The Chief Justice tries to distinguish Insite on the basis that it was an administrative decision, not one made in an adversarial, criminal-law context, but I am not convinced that the distinction matters very much. What is more questionable is just how well the Insite decision itself fits into the broader context of Canadian constitutional law. It’s an issue I (sort of) flagged just a few weeks ago, as it happens, although I hadn’t thought of its relevance to this case.

That said, not being an expert in criminal procedure, I find it difficult to come to a firm conclusion on the question whether the safeguards proposed by Justice Moldaver will be sufficient to ensure that no persons who do not deserve to be sentenced to the mandatory minimum will in fact be so sentenced. The advantage of the Chief Justice’s approach is, ultimately, that by eliminating the mandatory minimum altogether, it prevents some cases from slipping through the cracks. Not unlike a mandatory minimum itself, it may be a blunt instrument, but an appealing one for the institution who wields it.

Perhaps both the majority and the dissent are aware that their preferred methodologies will result in, respectively, some offenders benefiting from the elimination of the mandatory minimum despite it not being an unconstitutional sentence as applied to them, or some being subjected to it even though it is doubtful whether they should be. At least, this might help explain their excursions into empirical territory ― both of them in obiter and quite unnecessary. The Chief Justice, at least, backs up her claim that mandatory minimum sentences are ineffective. Justice Moldaver, by contrast, only refers to rhetorical claims about the dangers of gun crime, and not to any statistics.

This is, as I noted in my last post, not an uncommon problem in recent Supreme Court decisions, and it is striking just how easily these supported claims turn out to be wrong. An elementary Google search for “gun crime statistics Canada” turns up, as the very first result, a Statistics Canada report on the subject. This report shows that the number of “victims of firearm related violent crime” relative to population has been consistently declining from 2009 to 2012 (Chart 1), and that “firearm-related homicides” have been falling since the early 1990s, and even since the 1970s, occasional year-on-year spikes notwithstanding (Chart 3). In this context, Justice Moldaver’s professed alarm about gun crime is simply unfounded, and his calls for “respecting Parliament,” which allowed itself to be swayed by groundless alarmism ring hollow. (So does the Chief Justice’s assertion that “[g]un-related crime poses grave danger to Canadians,” [1] although it looks like an utterly insignificant throw-away.)

* * *

Ultimately, the respondents’ win on the constitutional issue does them no good. The majority finds that their own sentences are not actually disproportionate to their crimes, and upholds them. Parliament’s mandatory sentences turn out not to be very mandatory. Impressions about the prevalence of gun crime are unfounded. And legal victories sometimes offer no relief to the winners. As Sturgeon’s law has it, nothing is always absolutely so.

Judge Kopf on Mandatory Minimums

At his blog Hercules and the Umpire, Richard G. Kopf, a judge on the U.S. District Court for the District of Nebraska, has a fascinating post on mandatory minimum sentences, which I would urge anyone who has been following the Canadian debate about them to read. (Indeed, this is the rare occasion on which you should read the discussion in the comments.) Judge Kopf is generally critical of mandatory minimums as a policy matter, but his views are nuanced. In particular, they call into question the argument against mandatory minimum sentences being made by the Québec bar in its challenge to the 94 mandatory minimums created by the so-called Safe Streets and Communities Act, SC 2012 c 1, better known as Bill C-10, which the Québec Court of Appeal recently refused to dismiss for lack of standing.

Judge Kopf’s post consists of his answers to a series of questions asked by a journalism student, the very first of which is the same as that posed by the Bar’s challenge:

are these laws an encroachment upon the judicial branch and the prerogative of the individual judge by the executive and legislative branches?

Judge Kopf’s answer is that

there is nothing inherently wrong with Congress enacting mandatory minimums. After all, Congress has the power to pick specific and definite sentences for any crime on the books.

At the same time, Judge Kopf points to a serious problem with mandatory minimum sentences: “[i]n order to maintain proportionality between offenders mandatory minimums tend to drive up sentences” imposed on those whose crimes are more serious than the least blameworthy ones that could be punished under the same offence, for which the minimum sentence should in fairness be reserved. In the United States, this happens through the intermediary of the Sentencing Commission which must, as Judge Kopf explains, “implement those minimums and then peg the rest of the sentences [provided by the Sentencing Guidelines, which the Commission develops] around those benchmarks.”

There are no Sentencing Guidelines in Canada, but Canadian courts have recognized this effect of mandatory minimums as well. In the recent decision in R. v. Holt, 2014 BCSC 2170, Justice Warren of the Supreme Court of British Columbia explained that

[s]ome mandatory minimum sentences have been found to create an “inflationary floor” that affects the sentence of not only those who might have received sentences below the mandatory minimum, but also those who would have received higher sentences, on the theory that the overriding sentencing principle of proportionality requires the minimum sentence to be reserved for the so-called “best offender.” [26]

As Justice Warren further explained, if the mandatory minimum for a given offence is in line with the lowest sentences already being handed to those found guilty of it, there will be no inflationary effect. But if it forces courts to increase the sentences at the lower end of the range for the offence, then it will also affect those offenders whose sentence ought to harsher.

All that to say, as the Nova Scotia Court of Appeal, as well yours truly, have already pointed out, that the big problem with mandatory minimums is not their effect on judicial discretion or separation of powers, but their effect on people being sentenced. And that effect, as Judge Kopf observes, can be very unfair. Judge Kopf acknowledges that mandatory minimums can be legislative response to disparities in sentencing for substantially similar crimes between judges and courts. They are, he says, “a way of imposing a minimum level of equality, albeit it at a great cost,” both that of the distortion of the sentences imposed across the board, and that of the injustice of punishments “that may have little or nothing to do with the proper sentence.”

Judge Kopf is no bleeding heart, and no libertarian, in case you’re wondering. Even if you think that Canadian judges and academics who have been denouncing mandatory minimums ― and, in the case of judges, striking them down on a regular basis ― are incorrigibly soft on crime, you should take what he has to say very seriously.

A Standing Invitation

Today the Québec Court of Appeal dismissed the federal government’s appeal from the Superior Court’s decision in Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863, which granted the Québec Bar public interest standing to challenge the constitutionality of the mandatory minimum sentences ― all 94 of them ― introduced by the so-called Safe Streets and Communities Act, SC 2012 c 1, better known as Bill C-10. The decision came from the bench at the end of this morning’s hearing, with reasons to follow. I was there, however, so I think I’m in a position to explain the (likely) grounds for the Court’s decision right away.

The federal government’s first, and less important, argument was that Justice Roy, who granted the Bar public interest standing, was to wrong to accept that it had a genuine interest in the issue. The government pointed out that the Bar failed to intervene in any of the multiple ongoing challenges to mandatory minimum sentences. It also asserted that ― unlike the NGO that was granted public interest standing in the Supreme Court’s most important recent case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, it wasn’t an “umbrella,” a representative for the people actually affected by the impugned legislation.

The Bar countered that it had a long-standing interest in matters related to the legal and judicial system, and that this challenge was in furtherance of that interest. The Court of Appeal, presumably, agreed.

The government’s main focus was on Justice Roy’s conclusion that the Bar’s challenge was a reasonable and effective way to get the issues it raised before the courts. Having a credible and well-resourced litigant willing to take on a case is not enough. Downtown Eastside, in the government’s view, stood for the proposition that if a litigant with personal standing could reasonably be expected to mount an equally or more effective challenge, public interest standing should (normally) not be granted. Unlike on the facts of Downtown Eastside, such was the case here. The accused who were potentially subject to the mandatory minimum sentences at issue had every incentive in the world to challenge them. Accused persons had challenged other mandatory minimums all the way up to the Supreme Court in the past, and were already challenging those introduced by C-10. Unlike with the prostitution-related provisions at issue in Downtown Eastside, no person was harmed by the the mandatory minimum sentences before they were imposed on them by courts, so there was no urgency to consider their constitutionality at once.

The government argued that the Bar’s challenge was seriously flawed. For one thing, it would have to be argued in a factual vacuum. The Bar proposed to use available judicial decisions as “reasonable hypothetical” examples of concrete situations to which the mandatory minimums might be applied to fill it up, to  but the Supreme Court has cautioned against such practices. And for another, the case was going to turn into an aggregate of 94 individual challenges to the various mandatory minimums created by C-10, and would be unmanageable, and thus not a good use of judicial resources.

The Court, however, was of the view that there was something more to the Bar’s case than an assemblage of challenges to individual mandatory minimums. These were “the trees,” but there was also “the forest” ― the Bar’s claim that Parliament interfered with judicial discretion and even judicial independence. The Bar, the judges suggested, was better placed than any individual litigant to argue this claim. If Parliament were to enact American-style sentencing guidelines, who could challenge them? Surely not an individual accused?

The federal government tried countering that this issue would be just the tip of the iceberg, because “99%” of the time of the court that would consider the case on the merits would be devoted to the challenges to the individual provisions. Switching metaphors, it said that the issue of judicial powers would be “Trojan horse” concealing the “soldiers” of these separate challenges under s. 12 of the Charter. Besides, accused persons could well raise the judicial independence issue, since it is another way, in addition to s. 12, in which the law under which they could be sentenced might be declared unconstitutional. Sure an individual could not fell every “tree,” by attacking provisions under which he is not accused, but he can still burn down the “forest.” If the Bar wants to make this argument, it can always intervene in an existing case. It just hasn’t done so. Increasingly desperate in the face of the bench’s skepticism, the government added that we should not be impressed by the “aura” surrounding the Bar, that we didn’t even know how much the Bar was spending on this challenge, and that many of its members were opposed.

To no avail. The judges obviously thought that the Bar’s argument that the introduction of multiple mandatory minimums amounted to unconstitutional interference with judicial independence or separation of powers was a serious one, and were concerned that it would not be made if the Bar were not allowed to bring it. And the existence of one serious question on which the Bar could have standing was enough to let the whole challenge go ahead. Any issues arising from its scope, the judges suggested, can be addressed through case-management.

The government tried to retreat to a subsidiary position, arguing that even if the Court upheld the decision to grant the Bar standing, it could and should limit standing to the “forest” issue, that of judicial independence. The Bar demurred, saying that this possibility had not been raised at first instance, and the Court, always skeptical, did not take up the suggestion.

Those of you who recall my earlier posts on this case will not be surprised to learn that I think this is a very bad decision. As I wrote here, the Bar’s challenge is a distortion of the nature of judicial review of legislation in the Canadian legal system. During its argument (very brief, at the Court’s request), the Bar insisted that its challenge aimed at the way the mandatory minimums were enacted by C-10 ― all at once and without studies. As a matter of political morality, I fully agree that this way of doing things is a shocking violation of what Jeremy Waldron has called “legislative due process.” But that’s not a legal argument. Legally, I remain persuaded that the argument based on judicial independence is feeble. (I wish the federal government had made that point more forcefully, however.) As I recently noted here, other courts seem committed to the view that Parliament is free to set the ranges within which judges may sentence offenders, subject to s. 12 constraints. In law, as I wrote in discussing the decision at first instance, the Bar’s inclusion of a doomed separation of powers argument allows it to jump through the standing hurdle, and the argument can then be more or less discarded.

A bad precedent, unfortunately, is not so easy to get rid of. I don’t know if the government intends to appeal, but unless it does and the Supreme Court intervenes, the Court of Appeal’s decision will be a standing invitation to any interest group with an ideological agenda to challenge any law it doesn’t like, the courts’ usual admonitions against fact-free constitutional challenges be damned.

Bar This Claim

A couple of recent cases that the Québec Court of Appeal should consider in deciding whether to let the Barreau’s challenge to mandatory minimums go forward.

Last Friday, the Supreme Court heard challenges to mandatory minimum sentences imposed for some gun-related offences as part of the federal government’s “tough on crime” agenda. In R. v. Nur, 2013 ONCA 677, the Court of Appeal for Ontario declared them unconstitutional because, although the sentence was not grossly disproportionate to the accused’s blameworthiness in the circumstances of that case, it could become so in a “reasonable hypothetical” situation, which made it “cruel and unusual punishment” contrary to s. 12 of the Canadian Charter of Rights and Freedoms. The “reasonable hypothetical” framework has long been a staple of s. 12 jurisprudence, going back to the Supreme Court’s decision in R. v. Smith, [1987] 1 S.C.R. 1045. Yet as Justin Ling explains in the CBA National Magazine, during last week’s argument in Nur, “many on the top bench were pondering a departure from the practice.”

And that, I would suggest, should be food for thought for the judges of the Québec Court of Appeal who, on December 4, will hear an appeal from the Superior Court’s decision to allow the Québec Bar to challenge, wholesale, 94 mandatory-minimum provisions recently added to the Criminal Code, Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863. As I explained in criticizing the Superior Court’s decision, although Justice Roy found that the Barreau’s challenge is a “reasonable and effective” way to make the argument that mandatory minimum sentences unconstitutionally infringe on the judiciary’s discretionary powers, this argument is at best secondary in the Barreau’s application. The main one is of the sort that was made in Nur ― a claim that mandatory minimum sentences infringe s. 12 of the Charter. Needless to say, this argument proceeds in a factual vacuum, since no one actually accused of anything is involved in the case. The Barreau contends that this does not matter since s. 12 arguments can be made on the basis of reasonable hypotheticals anyway. But if the Supreme Court chooses to eliminate, or even merely to limit the use of reasonable hypotheticals in s. 12 analysis, this claim will ring more hollow than ever.

As for the claim that mandatory minimum sentences as such infringe the judiciary’s protected discretion, I remain of the view ― which I explained here ― that it is simply not a serious argument. On this point, the words of Chief Justice MacDonald of the Nova Scotia Court of Appeal in the recent case of R. v. MacDonald, 2014 NSCA 102, which struck down the same mandatory minimum that is at issue in Nur, are apposite. The case, he said (at par. 9), is about

the comparative roles of the judiciary and Parliament. Specifically, in our constitutional democracy, Parliament decides what actions will constitute a criminal offence together with the corresponding range of punishment for each. This may include, in Parliament’s discretion, mandatory minimum sentences for certain offences. In this regard, the will of Parliament shall prevail, unless the sentencing provisions are so severe as to constitute cruel and unusual punishment as prohibited by our Charter of Rights and Freedoms. It then falls to the judiciary, as guardians of the Charter, to prevent such occurrences. (Emphasis mine)

It is Parliament’s role, not the courts’, to define the range ― that is to say the upper as well as the lower limits, if any ― of sentences for the offences which Parliament creates. It should go without saying that a power to create and define offences entails the power to define their relative gravity, and that the imposition of sentencing ranges is the most obvious (and maybe the only?) way to meaningfully do this. The only constraint on Parliament’s discretion in this regard is the Charter. The Barreau’s separation of powers argument is without merit, and the Court of Appeal shouldn’t repeat the Superior Court’s mistake by allowing its application to proceed on this shaky basis.

Up We Go

Just a quick post to note that Justice Pierre Dalphond of the Québec Court of Appeal has granted the federal government’s application for leave to appeal the Superior Court’s decision granting the Québec Bar standing to challenge, wholesale, the mandatory minimum sentencing provisions enacted by Parliament as part of an omnibus criminal law statute, the Safe Streets and Communities Act, S.C. 2012 c. 1. Justice Dalphond’s ruling is very brief, stating only that allowing the appeal to go forward is “in the interests of the justice system.”

I blogged about the Superior Court’s decision here, arguing that it was not a persuasive one. In my original post on the Bar’s challenge, I expected it to be dismissed for lack of standing; perhaps the Court of Appeal will yet prove me right. For the reasons I elaborated in my previous posts, I believe that the Bar’s recourse is inappropriate and inconsistent with the nature of judicial review in Canada. The hearing of the appeal is set for December 4.

Open Bar

First of all, apologies for my silence. I’m afraid I will not blog much this week either, but I should resume normal schedule next week.

I am able to write today, however, and want to discuss the decision of Québec’s Superior Court on a challenge to the standing of the Québec Bar to attack the constitutionality of the plethora of mandatory minimum sentences introduced by an omnibus criminal law bill, C-10, enacted by Parliament as the Safe Streets and Communities Act, S.C. 2012 c. 1. I blogged about the Bar’s challenge when it was launched, and said I expected it to be dismissed for lack of standing. Well, I was wrong. In Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863, Justice André Roy rejects the federal government’s attempt to have the case dismissed, holding that the Bar has public interest standing. It is not, in my view, a very persuasive ruling, but it shows that the Bar’s litigation strategy, which I thought rather bizarre, might in fact be pure genius.

The test for deciding whether a litigant not personally affected by a statute should be granted public interest standing to challenge its constitutionality were most recently revised and set out by the Supreme Court in  Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, which I summarized here. Briefly, the challenge must raise serious and justiciable issues, the plaintiff must have a genuine interest in the dispute, and the case must be a “reasonable and effective way to bring the issue before the courts” in all the circumstances. Relevant factors to determine whether this last criterion is met include (but are not limited to) the plaintiff’s capacity to prosecute his claim, and the possibility that the issues he raises (and his perspective on them) would be brought before the courts in a different way.

The federal government conceded that at least some of the issues raised by the Québec Bar’s challenge were justiciable and serious. Indeed, courts around Canada have already been considering the constitutionality of mandatory minimum sentences, and the Supreme Court will do so when it hears the federal government’s appeal from the decision of the Court of Appeal for Ontario in R. v. Nur, 2013 ONCA 677 and its companion cases.

On the issue of the Bar’s interest in the issue, the government tried arguing that the constitutionality of mandatory minimum sentences had nothing to do with its ostensible mission to protect the consumers of legal services. The Bar itself claimed that its mission was far broader, and that it had a legitimate interest in issues concerning courts and the justice system. Justice Roy agrees with the Bar, finding that it is “a leading actor on all questions relative to both federal and provincial legislation” (par. 42; translation mine here and throughout), and that its mission of protecting the public had a preventive component, encompassing a “social role” (par. 46) which includes the public expression of positions on issues relating to its expertise.

Finally, the government argued that the Québec Bar’s challenge is not a reasonable and effective way to get the issue of the constitutionality of mandatory minimums before the courts, claiming that the Bar’s case really involves 94 distinct challenges (the number of new mandatory minimums in C-10), many of which were already being litigated, and that it would require their consideration in a factual vacuum. The Bar, for its part, contended that its challenge was the best, and perhaps the only, way to bring before the courts an issue which individuals who could be subject to the mandatory minimum sentences would not be likely to litigate, and which is common to all the various provisions it attacks: the elimination of judicial discretion and the corresponding interference with judicial power and independence. Justice Roy agrees with the Bar, asserting that its challenge “gave raise to a judicial [sic] debate on the true issues of this legislation and posed questions that go to the heart of the judicial process in penal matters” (par. 63). “[T]he central question” (par. 67) of any individual challenge to a mandatory minimum is that of judicial discretion, and the Bar’s challenge is a reasonable and effective way of having it answered. As for the necessary factual background, it can be found in past cases cited by the Bar in its application.

Even assuming that Justice Roy’s disposition of the second part of the public interest standing test is correct (which it probably is, given the fairly lax application of this criterion by the Supreme Court in the past), I think that he goes astray in discussing the “reasonable and effective” criterion. It seems strange, if not preposterous, to me to claim that the real issue with mandatory minimums is interference with judicial power rather than the potential for disproportionate punishment in which their imposition may result. The Bar’s application itself devotes 43 paragraphs to allegations of violations of sections 7 and 15 of the Charter, and only 15 ― one third as much ― to the alleged violations of separation of powers and judicial independence. Furthermore, as I argued here, the judicial independence argument is a very weak one ― and it is perhaps noteworthy that Justice Roy does not even mention it in his discussion of the first part of the standing test. I still think that it would be astonishing if this argument were to succeed. And if we set it aside, the Bar’s challenge becomes, as the federal government contended, nothing more than an unwieldy collection of challenges to a large number of independent statutory provisions, presented in a factual vacuum which the Bar and Justice Roy propose to fill with hypotheticals. It is miles away from the Downtown Eastside case, where public interest standing was first and foremost the only way to bring crucial, probably even determinative, facts to bear on a challenge to a unified statutory scheme.

Justice Roy, it seems to me, has fallen for the Bar’s litigation strategy, which is really brilliant ― whether deliberately or accidentally so. By making a doomed, nearly frivolous argument, on which it is most likely to lose when the merits of its case are appraised, the Bar is nonetheless able to give a very different look to its constitutional challenge, and thus get over the standing hurdle, which it should never have overcome. Having overcome it, it can discard this argument altogether, or confine it to the throwaway status that is the best that it deserves, and focus its energy on its more serious claims, which it should not have been allowed to make in the first place. Litigators take note.

I hope the Court of Appeal will take note too, however. I don’t know if the federal government intends to appeal (though it seems like a pretty good bet), but if it does, it should win. I have no love lost for its “tough-on-crime” legislation generally or mandatory minimums in particular, but this case, if it goes forward, will make constitutional litigation into an open bar. As I wrote in my original post, this is not consistent with the nature of judicial review of legislation in Canada. Courts should not allow it to happen.

NOTE: Hat tip to Maxime St-Hilaire for making me aware of the decision, which I had missed.

Petty Punishment, SCC Edition

Rather lost in all the noise generated by the Supreme Court’s decision in l’Affaire Nadon is the Court’s decision, delivered last Thursday, in Canada (Attorney General) v. Whaling, 2014 SCC 20, which considered, and found unconstitutional, the retroactive application of the abolition of accelerated parole review by one of the recent “tough on crime” laws. I would like to come back to that decision.

The case was an appeal from a decision by the BC Court of Appeal, about which I blogged here. As I wrote then,

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

The Court of Appeal found that a change of the terms under which an already-sentenced prisoner would be eligible for parole requiring him or her to spend more time in prison was, indeed, a form of punishment, and thus a violation of the Charter, which in its view the government failed to justify under s. 1. The Supreme Court, in a unanimous judgment by Justice Wagner, agreed.

The government argued that the abolition of accelerated parole did not have punitive aims; its purposes were, rather, rehabilitation of the offenders, as well public safety and confidence in the judicial system. It also contended that par. 11(h) of the Charter only applied to cases where a person was more than once subject of proceedings of a criminal nature arising out the same facts.

With respect to the latter argument, Justice Wagner points out that

[t]he disjunctive language of the words “tried or punished” clearly indicates that s. 11(h)’s protection against additional punishment is independent of its protection against being tried again (par. 37; emphasis in the original).

Furthermore, says Justice Wagner, it stands to reason that if the Charter protects one against being punished again for the same offence as a result of the application of due process of law, it must protect against the greater evil of being punished again without due process.

Justice Wagner identifies three types of situations to which par. 11(h) of Charter applies:

(a)   a [new] proceeding that is criminal or quasi-criminal in nature (being “tried . . . again”);

(b)   an additional sanction or consequence that … is similar in nature to the types of sanctions available under the Criminal Code and is imposed in furtherance of the purpose and principles of sentencing; and

(c)   retrospective changes to the conditions of the original sanction which have the effect of adding to the offender’s punishment (being “punished . . . again”).

A change only to the conditions under which a sentence is served will not come within the scope of (c), but a change that results in the sentencing actually lasting longer will. Importantly, this includes changes that result in a person serving a longer part of his or her sentence in prison, even if the overall length of the sentence remains the same. The abolition of accelerated parole for those who, at the time of their sentencing, were entitled to it adds to their punishment.

Although Justice Wagner refuses, “[d]espite some troubling passages from Hansard that are suggestive of [a punitive and therefore] unconstitutional purpose,” to conclude that the object of the retroactive abolition of accelerated parole review was not merely the uniform application of the new sentencing regime to all offenders, as the government contended. However, a law can be rendered unconstitutional by its effects as well as by its purpose, which is what happens here:

[t]he imposition of a delay in parole eligibility in this case is analogous to the imposition of delayed parole eligibility by a judge under the Criminal Code as part of the sentence (par. 72),

which is a form of punishment. Since the is done retroactively for those who were already punished for their offences, par. 11(h) of the Charter is infringed.

Justice Wagner then turns, briefly, to s. 1 of the Charter. Justice Wagner finds the objectives of effective and uniform parole administration, and the support of public confidence in the justice system which is supposed to result form it, pressing and substantial. He also finds that the retroactive abolition of accelerated parole review is rationally connected to these objectives. It fails, however, at the “minimal impairment” stage, because

[t]he Crown has produced no evidence to show why the alternative of a prospective repeal, which would have been compatible with the respondents’ constitutional rights, would have significantly undermined its objectives (par. 80).

Although Justice Wagner’s s. 1 analysis seems a little quick, almost an afterthought, I think that this he and the Court get the outcome right. As I wrote when commenting on the Court of Appeal decision

[w]hatever the reasons for abolishing accelerated parole for the future, imposing tougher punishment retroactively seems merely petty.

 UPDATE: Michael Spratt delves into the detail of how Parliament and the government miserably failed ― and indeed refused to ― consider the constitutionality of the retroactive application of the abolition of accelerated parole. It is an instructive as it is sad, particularly for those who like to believe that legislators take rights seriously.