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.

Mass Confusion

There is a long article in the New York Times about the increasing opposition to the use of exceedingly long prison sentences―often life imprisonment without parole―as punishment for all sorts of crimes, often not involving any violence, including drug-related offences, resulting in the phenomenon of “mass incarceration.” The article highlights the findings of social scientists that mass incarceration has long stopped contributing to the ongoing fall in crime rates, if it ever did, and that it may even be creating more crime than it prevents, by destroying the “social fabric.” At the same time, it results in enormous increases in public spending on prisons. And many people, including judges, feel that it is simply unjust to put people away, often forever, despite their very limited culpability. It is an interesting piece, but I would like to highlight a few distinctions which it blurs or does not make at all.

One concerns the label “non-violent crime”. There are many crimes not involving violence, or even threats of violence,―fraud, for example, or blackmail. I don’t think it is very helpful to confuse acts of that kind, which would be considered crimes on any, including the most libertarian, account of criminal law, with things like drug possession or trafficking. We can of course debate the appropriate penalties for fraud, but I doubt that many would argue that it should never be punished with imprisonment. Drug crimes are another matter. So I think that the category of “victimless crimes” is a better focus of concern than that of non-violent crimes.

A related point is that a discussion of penalties for victimless crimes, especially drug-related crimes, feels incomplete without any mention of the question whether these should be criminalized at all. Yet that is exactly what the Times‘ article manages. For all the discussion of the costs, human, social, and economic, of mass incarceration, it never really raises the issue of decriminalization. The closest it comes is by mentioning the fact that some now advocate “diverting” those found guilty of drug crimes from incarceration to treatment―but of course this implies that what these people did was a crime to begin with.

Another point of confusion concerns different sentences that the article lumps together as contributing to mass incarceration. There are simply very long sentences, mandatory minimum sentences, and specifically life imprisonment without parole. Yet these three types of sentences can raise different issues. Sometimes a sentence will be unjust because it is disproportionate to the crime, regardless of whether it is mandatory or the product of judicial discretion. With a mandatory sentence, the lack of such discretion will sometimes be a problem, but perhaps not always―I’m not aware, for instance, of people arguing that the mandatory sentence of life imprisonment with no possibility of parole for 25 years, which Canada imposes for premeditated murder, is unjust. Life imprisonment without parole, whether or not it is a mandatory sentence for any give crime, raises issues of its own. In Germany, for example, it has been held to be an unconstitutional violation of human dignity. I’m rather skeptical about such claims, but they are out there―and they are only made, so far anyway, with regard to life without parole, not any other sentence, except the death penalty of course.

The final point I want to make is, as it happens, one I previously raised (here, here, and here) with respect to the death penalty. Most arguments about it―in favour or against―are either consequentialist or deontological/justice-based, and it is sometimes remarkable how arguments of one or the other sort are made in specific contexts. With the penalties that contribute to creating mass incarceration too we see both sorts of arguments. Social scientists whom the Times quotes stay in the realm of consequences, as do the politicians who are now beginning to reverse some “tough-on-crime” policies. On the other hand, those who deal with specific cases―a prisoner interviewed by the Times and the judge who imposed a mandatory sentence of life imprisonment on her―speak of the injustice of that sentence.

Mass incarceration is a huge problem, and a disgrace, for the United States―and also to Canada insofar as our government seems keen to import some of the policies that create it. All the more important to think clearly about it.

Petty Punishment

The Court of Appeal for British Columbia has struck down yet another element of the “tough-on-crime” agenda of the Conservative government in a recent decision, Whaling v. Canada (Attorney General), 2012 BCCA 435, holding that the abolition of accelerated parole could not be applied to prisoners sentenced before the coming into force of the Abolition of Early Parole Act, S.C. 2011 c. 11. (I wrote about cases in which other parts of the “tough-on-crime” programme were struck down here and here.)

Three prisoners who would have been eligible for accelerated parole under the old terms of the Corrections and Conditional Release Act, S.C. 1992 c. 20, which were in force at the time of their sentencing, challenged the constitutionality of applying to them the abolition of accelerated parole. They won in the Supreme Court of British Columbia. The federal government appealed. It lost.

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 observed “that not every consequence of being convicted of a criminal offence is ‘punishment'” (par. 48)―being required to submit a DNA sample, for example, is not. However, “courts have consistently found delayed parole eligibility to be ‘punishment'” (par. 49) when it is imposed by a sentencing court. In this case, though, it was imposed not by a sentencing court, but by legislation (and thus on all prisoners who might have been eligible for accelerated parole rather than on one in particular in response to his specific crime).

The government argued that the purpose of the legislation made all the difference, and the purpose of the Abolition of Early Parole Act was not to punish, but “to improve sentence management” (par. 50). The Court did not really dispute this characterization of the statute’s purpose, though there was some evidence that it was, at least to some extent, intended as a punitive measure. Rather, following Supreme Court precedent, the Court held that the statute’s effects are as important as its purpose when considering its constitutionality. And the effect of the abolition of accelerated parole is undoubtedly to increase “the harshness of the sentence” the respondents will have to serve. In that, it is “no different from that of parole ineligibility imposed by a judge” (par. 57), which had been held to constitute “punishment” within the meaning of the Charter. Imposing this form of punishment on those who had already been sentenced previously, as the respondents had, was contrary to par. 11(h) of the Charter.

Nor could this violation be justified under s. 1. However worthy the general objective of the Abolition of Early Parole Act might be, what must be justified is its retroactive application in violation of constitutional rights and, the Court held, they are not important enough to do that. It was simply not necessary abolish accelerated parole retroactively.

Indeed. Whatever the reasons for abolishing accelerated parole for the future, imposing tougher punishment retroactively seems merely petty.

Minus the Mandatory Minimum

Last week, another mandatory minimum sentence introduced as part of the federal government’s “tough-on-crime” agenda was declared unconstitutional, this time by the Ontario Court of Justice. The provision at issue in R. v. Lewis, 2012 ONCJ 413, is par. 99(2)(a) of the Criminal Code, and imposes a mandatory minimum of three-years’ imprisonment for a first-time firearms trafficking offence.

The accused had sold some cocaine to an undercover police officer posing as a low-level dealer, and offered to sell him a handgun. The judge found, however, that that was a “hollow offer” never intended to be followed through on. The accused never had a gun or access to one―he only boasted of his ability to procure one in order to keep his new client’s business. Still, offering to sell a firearm is enough to bring one within the scope of the trafficking provision of the Criminal Code. After he was arrested and charged, he pled guilty to three counts of trafficking in cocaine, but challenged the charge of weapons-trafficking, arguing that the mandatory minimum sentence on it was unconstitutional because contrary to the prohibition on “cruel and unusual … punishment” in s. 12 of the Charter.

Adopting the test developed by the Superior Court in cases dealing with another mandatory minimum provision, justice Bellefontaine held that he had to decide, first, whether the sentence he would impose absent the mandatory minimum would in fact be less than that minimum, and second, if so, whether it was contrary to s. 12 and could not be saved by s. 1 of the Charter. To the first question, the judge answered that, although the accused’s blameworthiness for this offence was ” at the very low end of the spectrum of offences” since he never actually meant to sell a firearm, in view of his rather lengthy history of criminality, some of it violent, a one-year sentence would have been appropriate. That, of course, is well short of the statutory minimum.

The question of that minimum’s constitutionality must then be dealt with. The test set out by the Supreme Court “is whether [the sentence] is so excessive or grossly disproportionate as to outrage standards of decency.” This test must be applied both to the actual circumstances of the accused and to a reasonable hypothetical case; if the sentence fails it in either instance, it is unconstitutional. As applied to Mr. Lewis, the judge finds that the statutory minimum is disproportionate, but not so grossly as to be unconstitutional, given his “significant criminal antecedents and entrenched devotion to a criminal lifestyle.” The outcome is different, however, for a hypothetical accused in whose case these aggravating circumstances would not be present and who would be, say, trafficking in marijuana rather than cocaine. In that case, says justice Bellefontaine, a three year sentence would be outrageously disproportionate:

[w]hile the words “one year” or “two years” or “three years” slide off the tongue equally easily, they represent large magnitudes of difference to a youthful first offender serving the sentence.  A three year sentence will necessarily be served in the harsh environment of a federal penitentiary with generally older and many hardened violent criminals.  Such a length of sentence and the severe environment it would be served in would effectively eliminate rehabilitation as a sentencing objective when it should be the primary purpose of sentencing for a youthful first offender.  That length of sentence would not be required for specific deterrence.  Such a grossly disproportionate sentence could not be justified on the basis of general deterrence or the protection of the public.

The judge then proceeds to the s. 1 analysis. After referring to another recent mandatory-minimum case, he concludes that

Parliament has imposed a minimum penalty that addresses a worse case offence but which grossly over penalizes the many lesser ways that the same crime can be committed.  The minimum three year sentence does not address the different degrees of moral blame worthiness associated with the different circumstances under which the offence can be committed and accordingly the penalty does not meet the minimal impairment and proportionality tests in R. v. Oakes, [1986] 1 S.C.R. 103 and cannot be justified under Section 1.

The judge briefly considers reading down the mandatory minimum to apply to actual trafficking cases, as opposed to those, such as the one at bar, of offers to traffic, but finally declines to do so. Accordingly, he declares the mandatory minimum provision unconstitutional.

James Morton, a former president of the Ontario Bar Association, argues that this is the wrong decision. “[W]ould reasonable people really be outraged by a fixed minimum sentence of three years for firearms trafficking? Is such a punishment truly grossly excessive? … The gun trafficking minimum sentence is one of those areas where the courts should have exercised more deference to parliament.” I don’t think so. If the constitution invalidates excessive sentences, just like it invalidates, say, laws infringing on freedom of speech, or federal laws invading provincial jurisdiction, then why should courts be more deferential to allegedly unconstitutionally harsh laws than to other potentially unconstitutional ones? What Mr. Morton’s comments do suggest is that it is problematic for courts to make popular feeling, of which they cannot be very good judges, a criterion of constitutionality. I doubt that courts actually take such references to popular feeling very seriously. But if so, they should drop the pretense.