overbreadth – Double Aspect

Still Wrong, Just a Little Less So

The Québec Court of Appeal errs in thinking the Charter prevents the imposition of, in effect, life imprisonment without parole

This post is co-written with Maxime St-Hiliaire

What punishment is just for someone who takes the lives of many other human beings? And what punishment for such a person is constitutional? In Bissonnette v R, 2020 QCCA 1585 answers the latter question, and its answer is at odds with the answer to the former. In an unattributed unanimous opinion, the Court holds that a provision of the Criminal Code that allowed―but did not require―sentencing judges to stack minimum parole ineligibility periods imposed for multiple counts of first-degree murder is unconstitutional. The Court finds that the very possibility of such stacking is cruel and unusual punishment prohibited by section 12 of the Canadian Charter of Rights and Freedoms, and a deprivation of liberty and security of the person contrary to the principles of fundamental justice prohibited by section 7 of the Charter.

The sentencing judge in R v Bissonnette, 2019 QCCS 354 thought that the ordinary sentence of life imprisonment without parole eligibility for 25 years would not have been adequate. However, he also found the stacking of multiple 25-year periods constitutionally objectionable, and took it upon himself to rewrite the Criminal Code so as to give himself the discretion to fashion what he took to be the appropriate sentence of life imprisonment without parole for a 40-year period. The Crown appealed the finding of unconstitutionality, while Mr. Bissonnette appealed the sentencing judge’s remedy (which the Crown defended as an alternative).

The Court of Appeal first considers whether the stacking of parole ineligibility periods amounts to cruel and unusual punishment. In its view, the fact that such stacking is not required and can be ordered at a judge’s discretion does not remedy its constitutional defects: “notwithstanding the existence of a discretionary power by which the judge can refrain from imposing a cruel and unusual sentence, the provision is invalid simply because it authorizes a judge to impose such a sentence”. [79] It clarifies, however, that a discretionary sentence that will be cruel and unusual in some cases ought to be upheld if it will nevertheless be proportionate in others. Thus “the question to be resolved is this: are there situations in which it would not be cruel and unusual to impose minimum parole ineligibility periods of 50, 75, 100, 125, 150, indeed 1,000, years?” [89]

The Court takes the position that there are no such situations. Indeed, in its view, the idea is simply irrational. For one thing, “the number of victims to be used as a basis for a judge to stack periods of ineligibility is a legislative choice that is difficult to reconcile with the sentencing criteria in place in Canada”. [91] The possibility of a court “imposing a parole ineligibility period that highly exceeds the life expectancy of any human being” [92] is particularly disturbing. For the Court of Appeal, “[a] court must not make an order that can never be carried out”, because this “brings the administration of justice into disrepute” and amounts to “senselessness” that “is, in and of itself, cruel and unusual punishment … degrading because of its absurdity”. [93] Indeed, even a sentence of life imprisonment without parole “is at least tied to the lifetime of a human being, while ineligibility periods totalling 100 years and more have nothing in common with the duration of a human life”. [95]

But the problem the Court sees with stacked parole ineligibility periods, even just two, is more than just irrationality. It also has to do with the possibility that a rehabilitated offender would be denied the opportunity to apply for parole:

An inmate rehabilitated after 25 years and not eligible to apply for parole before a second 25-year period would, in all cases, be subject to cruel and unusual treatment. The excessive length of the unnecessarily prolonged incarceration would be grossly disproportionate. … [107]

For the Court of Appeal, “preventing a reformed accused from having genuine access to the parole application process” [111] is in itself a fatal constitutional flaw, compounded by the fact that the sentencing “judge is not in a position, barring speculation, to genuinely know the likelihood that the accused will be rehabilitated in 25 years. He is in an even worse position, if that is possible, when dealing with a period of 50 years.” [110] This flaw cannot be justified under section 1 of the Charter.

The Court then turns to section 7 of the Charter. It notes that sentencing judge’s findings that not only are stacked parole ineligibility periods a deprivation of liberty, but also that “an actual irreducible sentence of imprisonment for life” [117] produce psychological impacts that amount to a deprivation of the prisoners’ security of the person are not challenged. The issue is whether these deprivations accord with principles of fundamental justice.

The Court of Appeal does not follow the judge below in accepting the protection of human dignity as a principle of fundamental justice and finding that it too has been breached. For it, two such principles are at play: the prohibitions on overbreadth and gross disproportionality. Both are assessed relative to the objective of the impugned legislation. The purpose of allowing sentencing judges to stack parole ineligibility periods for multiple murders is to “(1) protect society from the most incorrigible killers, and (2) restore the balance between the rights of victims and those of multiple murderers and acknowledge the value of ‘every life lost’”. [135]

The Court finds that the possibility of stacking parole ineligibility periods is overbroad “because it applies to all multiple murderers, regardless of the specific circumstances of each case”, [139] and not “only to psychopaths, organized crime hitmen or incorrigible murderers”. [140] Some might be sentenced to extended parole ineligibility without being unusually dangerous. The rule thus produces effects not rationally connected to its ostensible objectives, and so is overbroad. Nor is the stacking of parole ineligibility periods rationally connected to acknowledging every victim, since in any case a person so sentenced is likely or bound to die before all of the consecutive periods have elapsed. Such sentencing is also grossly disproportionate to its stated objectives. The overbreadth and gross disproportionality cannot be justified in a free and democratic society.

The last question for the Court is that of the remedy. Unlike the judge below, it holds that it must simply declare the possibility of stacking ineligibility periods invalid, “without being rewritten by the courts”. [186] It is clear that Parliament considered and rejected the solution adopted by the sentencing judge ― granting judges discretion as to the duration of parole ineligibility beyond the usual 25 years for a first-degree murder. It would not be appropriate for courts to impose it anyway.

In our view, the Court of Appeal’s judgment is less troubling than that of the Superior Court, which we criticized here. In particular, it is important to note that the Court takes the correct approach to the question of the remedy ― assuming, of course, that its conclusion of unconstitutionality is also correct. But it is not. The Court of Appeal’s reasoning on the issue of constitutionality misapprehends the inquiry and consequently falls into doctrinal error, as well as moral myopia.

Indeed, its most fundamental flaw is one that it ascribes to the legislation it pronounces unconstitutional: a refusal to engage with the circumstances and deserts of the individual accused. The very first sentence of the Court’s reasons proclaims that

[t]his judgment is not about the horror of Alexandre Bissonnette’s actions on January 29, 2017, nor even about the impact of his crimes on an entire community and on society in general; it is, rather, first and foremost, about the constitutionality of a provision of the Criminal Code. [1]

The Court subsequently adds that “[t]he analysis of the provision’s constitutionality must be carried out independently of the appellant’s case, notwithstanding the horror of his actions”. [54] The Court no doubt means this as a reminder that even the worst wrongdoers have rights under the Charter, which must be not be overlooked by focusing on their wrongdoing alone. That is true, so far as it goes. But there is a reason why Canadian courts normally assess the constitutionality of legislation on the facts of particular cases rather than in the abstract. This case, which is, pace the Court of Appeal, about the sentencing of man who murdered six worshippers at a mosque in Québec City and injured 19 others, ought to have been a reminder of that fact.

In the Supreme Court’s first explication of section 12 of the Charter in R v Smith, [1987] 1 SCR 1045, Justice Lamer (as he then was) wrote that

[i]n assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. … Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances. (1073)

In other words, contrary to the Court of Appeal’s approach, the offence and the offender ― including “the horror of his actions” are the primary consideration in assessing an alleged infringement of section 12. The Supreme Court has followed this approach more recently too, including in R v Boudreault, 2018 SCC 58, [2018] 3 SCR 599. The Court of Appeal neglects “to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender”, and this failure warps its subsequent analysis.

In particular, the Court of Appeal is single-mindedly focused on the issue of rehabilitation as the overriding consideration in deciding whether stacked parole ineligibility periods can ever be a constitutionally acceptable punishment. But, focusing on the facts before it, the Court ought to have remembered that ― as Justice Lamer suggested in Smith ― rehabilitation is not necessarily the primary factor in deciding on a fit sentence. Sometimes, the need to punish will dominate. This is not a crass desire for vengeance, but a recognition that different circumstances ― different offenses and different offenders ― call for different responses on the part of society.

A comparison with the sentencing judgment of the New Zealand High Court in the case of the Christchurch mosque shooter, R v Tarrant [2020] NZHC 2192, is relevant. As one of us (Sirota) has explained here, in that case Justice Mander found that

no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold [the shooter] to account for the harm [he] ha[d] done to the community. Nor [would] minimum term of imprisonment would be sufficient to denounce [his] crimes. [179]

Ironically, the Court of Appeal refers to the Christchurch shooting, noting in a footnote that “the Christchurch massacre (51 victims) could have resulted in a period of 1,275 years” of parole ineligibility. For the Court this is self-evidently absurd. But for the judge who actually sentenced its perpetrator only a sentence of life imprisonment without parole would have sufficed.

This illustrates the fact the Court of Appeal has no regard to deserts of the man before it ― in violation of another cardinal principle of sentencing, that of the indivudalization of the sentence. It is also confused about the significance of the fact that a sentencing judge retains the discretion as to whether to sentence a given offender to a stacked period of parole ineligibility, at one point suggesting that this discretion is of no significance. Like it or not, Parliament enacted a law that allows individualized, if rough, justice. The Court of Appeal, by contrast, reasons entirely in the abstract.

Now, Parliament’s response to the prospect of vicious mass murder is, in our view, rather clunky. It would have been more straightforward, indeed more honest, to make sentences of life imprisonment without parole available, just as the New Zealand Parliament has done, instead of simply stacking non-eligibility periods until they quickly reach the same point. But the Court of Appeal does not really argue ― it merely asserts ― that the absurdity of extended ineligibility periods is inherently cruel. The person sentenced to such a punishment will understand what it means. And as for the claim that stacked parole ineligibility periods, because they cannot be served in full, discredit the administration of justice, it is simply beside the point. Section 12 of the Charter is concerned with justice to the offender, not the courts’ opinion of themselves.

As for the Court of Appeal’s reasoning on section 7 of the Charter, it also suffers from the Court’s failure to account for the discretionary nature of the stacking of parole ineligibility periods permitted ― not required! ― by the Criminal Code. The Court says that in some cases a stacked sentence can be imposed on multiple murderers who are not among the worst of the worst, and so not the sort of offender to deal with whom the stacking was permitted. But if indeed such a sentence is inappropriate ― and it is worth noting yet again that, as this very case highlights, the categories of the incorrigible are not closed, and are not limited to “psychopaths” and “organized crime hitmen” ― the sentencing in the particular case can be overturned on appeal. It seems that the Court of Appeal, like the judge below, simply does not trust to the discernment of other judges.

Like the Court of Appeal and the Superior Court, and like the New Zealand High Court, we believe that sentencing ― even for terrorist mass murderers ― must not be an exercise in raw vengeance. It is a good thing that Parliament’s authority to direct sentencing is constitutionally constrained. It is all too true that Parliament can sometimes demand punishment incommensurate to crime, especially when it seeks to curtail the sentencing judges’ ability to assess the actions and culpability of the offender in a pursuit of a law that will be equally harsh to all.

But nor can sentencing lose sight of the actions for which the sentence is being imposed. It would be a perverse constitution that required this, and fortunately the Charter is not so perverse. The principles consistently set out by the Supreme Court make clear both that the primary responsibility for sentencing policy is Parliament’s, and that applying constitutional constraints on Parliament must only serve to prevent abuses ― not to become an exercise in abstract, and ultimately soulless, humanitarianism. We hope that the Supreme Court will step in and reassert these principles once more in this case.

Sentencing Judgment Found Inside a Chinese Fortune Cookie

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

This post is co-written with Maxime St-Hilaire

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More of the Same

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

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

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

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

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

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

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

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

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

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

Bullshit in Sentencing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Scope of Smuggling

On Friday, the Supreme Court issued a pair of decisions clarifying the scope of the provisions of the Immigration and Refugee Protection Act (IRPA, among friends) relative to “people smuggling” ― the transportation to or across international borders of consenting individuals who lack the authorization to cross the borders in question. In B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, the Court held that a person is not inadmissible to Canada on grounds of organized criminality if he or she was not acting in order to obtain “a financial or other material benefit in the context of transnational organized crime.” [5] In R. v. Appulonappa, 2015 SCC 59, the Court held that the penal provision of IRPA relative to smuggling was unconstitutionally overbroad “insofar as [it] permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members.” [5]

While the legal issues on which the two decisions ultimately turn are different ― B010 is about statutory interpretation while Appulonappa is a Charter case ― they are closely related. Both decisions are unanimous, with the Chief Justice writing for the Court. I will review them together.

* * *

In B010, the issue was the scope of IRPA‘s provision that made foreign nationals inadmissible to Canada “on the grounds of organized criminality” and thus, if they claim asylum, prevented their claims from being determined on the merits, for “engaging, in the context of transnational crime, in activities such as people smuggling.” In the opinion of the Chief Justice, the “ordinary sense” of that provision, and in particular of the phrases “people smuggling” and “organized criminality” did not necessarily suggest that the activities it is aimed had to have a profit motive.

However, the Chief Justice concluded that provision’s “broader statutory context … suggests that [it] targets organized criminal activity in people smuggling for financial or other material benefit.” These considerations included the other grounds of inadmissibility provided by IRPA, which suggest that the provision at issue was specifically intended to target money-making organized crime, as well as the scope of the penal provision at issue in Appulonappa, which the Court held also targeted those who sought to make a profit from people smuggling. Moreover, the definition of a “criminal organization” in the Criminal Code, enacted so as to bring Canada into compliance with an international treaty a protocol to which deals with people smuggling, also refers to the profit motive. The protocol in question and other international agreements provided an “international context” which unambiguously pointed towards an intention to specifically outlaw profit-motivated smuggling, while not penalizing humanitarians and family members helping refugees.

* * *

As for Appulonappa, the issue there was whether IRPA‘s provision that imposed severe penalties, including potentially lengthy terms of imprisonment, on those who “knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required” was overbroad, and thus inconsistent with the principles of fundamental justice enshrined in section 7 of the Canadian Charter of Rights and Freedoms. A law is unconstitutionally overbroad if it penalizes acts that are not inconsistent with its purpose. Here, the problem was said to be that the provision reached the actions of those who did not seek to derive a material benefit from helping would-be refugees come to Canada. While the government argued the provision aimed “to catch all acts that in any way assist the entry of undocumented migrants,” the Court concluded that its purpose was narrower than that.

While the text of the provision in question was “broad enough to catch assistance to close family members and humanitarian assistance,” [36] here too other factors were more revealing of its aims. These factors included, once again, the international law, as well as the statutory context ― notably, the inadmissibility provision interpreted in B010, and the purposes of IRPA as a whole, which balance humanitarian concerns with those related to security. Importantly, IRPA provided that no prosecution for smuggling could be initiated without the agreement of the Attorney General. This “filter” was intended, as records of Parliamentary debates confirmed, to prevent the prosecution of persons participating in activities that fall within the broad definition of smuggling but are motivated by humanitarian or family concerns.

As the Chief Justice pointed out, it was thus clear that

Parliament itself understood … that the provision’s reach exceeded its purpose by catching those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada, but argued that this overbreadth was not a problem because the Attorney General would not permit the prosecution of such people. [72]

In her view, reliance on the Attorney General exercising his discretion in this way was not enough to avoid the overbreadth problem. Whatever Parliament’s intentions, nothing stopped the Attorney General from authorizing a prosecution inconsistent with those intentions. Thus, so long as the provision remained on the books, “people whom Parliament did not intend to prosecute [were] at risk of prosecution, conviction and imprisonment.” [74]

By way of justification under section 1 of the Charter, the government seemed to argue that the provision could not have been less broadly than it was, and was therefore minimally impairing. The Chief Justice, however, observed that “[s]ection 1 of the Charter does not allow rights to be limited on the basis of bare claims, but requires the Crown to provide a demonstrable justification for inconsistencies with Charter rights” [82; emphasis in the original], and concluded that this justification was missing.

Ultimately, this may be of little help to the appellants who had challenged the constitutionality of the provision in question in Appulonappa. Instead of striking it down completely, as they had hoped, the Court read it down “as not applicable to persons who give humanitarian, mutual or family assistance,” [85] and order a trial based on this revised version. Because the appellants were not actually humanitarians at all, but the crew of a ship that brought dozens of refugees to Canada, they might not far any better as a result of their constitutional victory.

* * *

The Court’s reasoning in both decisions seems persuasive to me in both decisions, at least as to the specific questions the cases turn on. I am rather less impressed with the Court’s apparent endorsement of the policy of criminalizing profit-motivated people smuggling. In the introduction to B010, the Chief Justice claims that “[t]he smugglers … cynically prey on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face.” Unfortunately, the Chief Justice pays no heed to the role that the criminalization of for-profit smuggling plays in making it the gruesome business it undoubtedly is. I have addressed this issue here and, quite recently, here. I might return to it again. For now, it is enough that, bad as they still are, our immigration laws are a little less bad now than they used to be.

Not too Broad

In a decision delivered this morning, the Supreme Court of Canada has upheld the constitutionality of subjecting the members of the Canadian armed forces to the military justice system for all almost offences against acts of Parliament. In R. v. Moriarity, 2015 SCC 55, it ruled that the provisions of the National Defence Act pursuant to which such offences could be tried in the military justice system, regardless of whether the accused was in uniform or on military property when they were committed were not inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms due to overbreadth, as the appellants had argued. In a unanimous decision by Justice Cromwell, the Court held that these provisions were rationally connected to their purpose ― once it was properly understood.

The first issue in a challenge based on s. 7 of the Charter is whether one of the “interests” that it protects ― life, liberty, or security of the person ― is “engaged” at all. Justice Cromwell easily concludes that this is the case here, because the provisions at issue are “part of a scheme through which a person … can be deprived of his or her liberty.” The main question is whether the potential deprivation of liberty pursuant to these provisions would be “in accordance with the principles of fundamental justice.”

Only one principle was said to be offended by the provisions at issue ― that according to which laws must not be overbroad. The Supreme Court’s jurisprudence defines overbreadth as a lack of rational connection between a legal rule’s purpose and its effect. As Justice Cromwell explains, the definition of the purpose is crucial to the overbreadth analysis. A legislative purpose defined too generally, at the level of a value, “will provide no meaningful check on the means employed to achieve it, [because] almost any challenged provision will likely be rationally connected to” it [28]. If, however, “the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them,” [28] ensuring that any law will survive an overbreadth challenge. To steer the middle course between these pitfalls, “[t]he statement of purpose should generally be both precise and succinct.” [29]

All parties agreed that the purpose of making members of the Canadian forces subject to a distinct system of military justice “relates to assuring the discipline, efficiency and morale of the armed forces.” [33] However, the appellants argued that Parliament that the military justice system was only meant to prosecute offences directly connected to the armed forces ― and not those committed by the forces’ members in civilian circumstances. The prosecution, for its part, contended that the military justice system had an additional “public function of punishing specific conduct which threatens public order and welfare.” [47]

The Court rejected both these suggestions. The legislation, it said, was quite clear when it sought to exclude offences committed outside the service from its scope ― as it did for the members of the reserves. Other offences falling within the military’s Code of Service Discipline naturally extend to conduct occurring outside the service. In short, “the overall thrust of the scheme [is] to include offences when committed by an individual subject to the [Code] regardless of what other link may or may not exist between the circumstances of the offence and the military.” Meanwhile, the prosecution’s addition of a broader “public order” purpose would result in confusing the purpose and the effect of the provisions at issue, making the inquiry into the existence of a connection between the two meaningless.

Such a connection existed, the Court concluded. In Justice Cromwell’s words,

Criminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale. For instance, the fact that a member of the military has committed an assault in a civil context … may call into question that individual’s capacity to show discipline in a military environment and to respect military authorities. The fact that the offence has occurred outside a military context does not make it irrational to conclude that the prosecution of the offence is related to the discipline, efficiency and morale of the military. [52]

Criminal behaviour by a member of the military, regardless of when and where it occurs, may also erode the trust and the respect others will have towards him or her. As a result, it is at least rational to prosecute offences committed outside the military context through the military justice system.

This seems fair enough, though the Court’s conclusion is asserted more than argued. Admittedly, the bar of rational connection between purpose and effect is a low one. The Court’s decision is narrow. Justice Cromwell flags some issues it does not address (because they were not raised):

the question of the scope of Parliament’s authority to legislate in relation to “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867 and the scope of the exemption of military law from the right to a jury trial guaranteed by s. 11(f) of the Charter are not before us. [30]

But there is also, arguably, a broader question to be asked about the extent to which an institution to which a person belongs ought to be able to discipline that person for behaviour occurring outside the institutional context, for the sake of maintaining “morale,” or harmony, or respect, etc. It is a question I raised in one of my very first posts, which dealt with a challenge to a punishment imposed by a university to students for a series of Facebook posts. I wrote then that

I can see why a university might be interested in what is being said in its lecture halls, or online on forums it maintains (in connection with courses for example). It does have an interest in maintaining a welcoming, respectful learning environment … But does this interest give a university the right to police the conduct of its students off-campus or online?

The Alberta Court of Appeal, which had decided that case, Pridgen v. University of Calgary, 2012 ABCA 139, had not addressed that question. Here, the Supreme Court concluded that it was rational for the military ― a very different institution from a university, of course ― to do so. But again, rationality is a low threshold, and there is little in the court’s decision that would help us answer the question on the merits in other settings.

This is not a criticism, of course. The Court decided the question before it, and did not have to do more. Its decision, like the provisions it considered, was no broader than it had to be.

Safety, First

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

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

* * *

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

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

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

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

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

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

* * *

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

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

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

Smuggling Intentions

Last week the Supreme Court of British Columbia declared Canada’s prohibition on human smuggling, s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, [IRPA] unconstitutional because overbroad. S. 117 provides that, under pain of severe penalties,

[n]o person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by [the IRPA].

The accused in R. v. Appulonappa, 2013 BCSC 31, argued that this criminalized conduct which Parliament did not actually intend to prohibit or prosecute, and so was contrary to s. 7 of the Canadian Charter of Rights and Freedoms, which proscribes deprivations of liberty contrary to “principles of fundamental justice.” One of these principles, long recognized by Canadian courts, is that penal laws must be no broader than is necessary to achieve their objective; in other words, they must not threaten people with punishment for conduct which it is not necessary to punish to achieve Parliament’s goals.

The accused claimed that s. 117 could do just that. Although it is aimed at human smuggling, which international agreements define, roughly, as assisting people to enter into a country illegally in order to make an economic profit, its wording is so broad that it could apply to family members or humanitarian workers helping people come to Canada and validly claim refugee status. Refugees, generally speaking, do have not the papers required by the IRPA. But the statute exempts them from liability for coming to Canada without them. Yet, while the refugees themselves would not be committing any offence, those who “organize, aid or abet” their “coming into Canada” would, regardless for their reason doing so.

The government argued that the examples put forth by the accused were far-fetched, and that, in any case, subs. 117(4), which provides that the Attorney-General has to authorize any prosecution under s. 117, would prevent any abuses. Indeed, it argued that the Attorney-General was legally bound to exercise his authority under subs. 117(4) so as to comply with international agreements that would protect humanitarian workers and family members.

Justice Silverman was unimpressed with the government’s submissions. The accused’s examples were realistic enough, and “technically within the scope of ‘human smuggling’ under s. 117.” Yet “they are not within the objectives that Canada is trying to achieve through s. 117. To the contrary, it is the clear intention of the government not to prosecute such people” (par. 149). But that intention, of course, is not expressed in the provision, which, as a result, is too drafted much more broadly that necessary. This “makes it impossible for persons to know if certain activities (those of humanitarian aid workers and close family members) will result in charges” (par. 153). The argument that the requirement of the Attorney-General’s authorization would prevent prosecution of those whom Parliament did not really intend to target was equally unpersuasive. Even if, as the government contended, the Attorney-General had a legal obligation to protect family members and humanitarian workers, it is not clear how that obligation could be enforced by courts. And if it was only a matter of policy, it could easily be abandoned.

Thus, although insisting that his “decision is not a negative comment on Parliament’s legitimate goal and objective of passing legislation which targets human smuggling” (par. 166), Justice Silverman struck down s. 117. Trying to read it down or to read into a condition not inserted by Parliament would have amounted to an usurpation of legislative power, so a declaration of unconstitutionality was the only possible remedy.

This is right. It is a basic principle of the Rule of Law that laws should be enforced as written, rather than according to implicit but unstated executive policy or legislative intentions smuggled in by courts through interpretation. The Rule of Law also requires that people have notice of what they can and what they cannot be prosecuted for. A law that threatens prosecution of an innocent activity has a “chilling effect” on that activity: people will fear engaging in it even if the state never really meant to prohibit it. So if the international consensus and Canada’s own policy is not to prosecute certain activities, a revised version of s. 117 should make that clear.