punishment – Double Aspect

Churchill on Prison

Winston Churchill’s thoughts on his time as a prisoner (of war)

I’m not sure, and am too lazy to verify, whether if Winston Churchill is the only head of a Commonwealth government to have been a prisoner; but there cannot have been many. (UPDATE: As my friend Malcolm Lavoie points out to me, Nelson Mandela is another example. It is rather stupid of me to have forgotten that and, as you will presently see, quite ironic.) Churchill did not long stay in captivity ― he escaped the converted school where he (a war correspondent at the time) and British officers taken prisoner during the early days of the Boer war were held ― but the experience still marked him, and he wrote about it in his memoir My Early Life, written in 1930:

[T]he whole atmosphere of prison, even the most easy and best regulated prison, is odious. Companions in this kind of misfortune quarrel about trifles and get the least possible pleasure from each other’s society. If you have never been under restraint before and never known what it was to be a captive, you feel a sense of constant humiliation in being confined to a narrow space, fenced in by railings and wire, watched by armed men, and webbed about with a tangle of regulations and restrictions. I certainly hated every minute of my captivity more than I have ever hated any other period in my whole life. (273)

In My Early Life, Churchill says relatively little about his philosophy, and almost nothing about his political career in the 1910s and ’20s, focusing mostly on telling the story as he lived it at the time of the events. However the topic of imprisonment prompts a rare digression:

Looking back on those days, I have always felt the keenest pity for prisoners and captives. What it must mean for any man, especially an educated man, to be confined for years in a modern convict prison strains my imagination. Each day exactly like the one before, with the barren ashes of wasted life behind, and all the long years of bondage stretching out ahead. There in after years, when I was Home Secretary and had all the prisons of England in my charge, I did my utmost consistent with public policy to introduce some sort of variety and indulgence into the life of their inmates, to give to educated minds books to feed on, to give to all periodical entertainments of some sort to look forward to and to look back upon, and to mitigate as far as is reasonable the hard lot which, if they have deserved, they must none the less endure. (273-74)

This is, I think, something that those in charge of prison policy at various levels would do well to consider ― all the more since they, unlike Churchill, will typically lack the experience, however short, of the shoe being on the other foot.

And speaking of books for a mind to feed on, whether or not the body that houses it is in prison or at large, one can find worse than My Early Life. Though it is, no doubt, somewhat politically incorrect by our standards, the events it tells are fascinating; the author’s philosophical observations, though infrequent, are sharp; there is a somewhat wicked pleasure in reading it while knowing what Churchill did not know when it wrote it ― the events that would made him one of history’s great heroes, instead of a minor footnote; and last but not least, it is brilliantly written and thus simply a joy to read.

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.

The Limits of Independence

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

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

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

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

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

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

A Bar Brawl

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

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

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

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

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

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

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

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

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

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

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

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 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.

A Strike against Three Strikes

The Superior Court of Ontario has struck down another element of the Conservative government’s “though-on-crime” legislative programme last week, in R. v. Hill, 2012 ONSC 5050. (I blogged about another such case here.) The provision at issue in Hill was s. 753(1.1) of the Criminal Code, which provides that if an accused is convicted of one of a list of offences (mostly, but not only, sexual and/or violent ones) and a sentence of two years’ imprisonment or more would be appropriate, and the accused has already been twice convicted of one of the same list of offences, then the accused is presumed to satisfy the criteria for being declared a dangerous offender, unless he proves the contrary on a balance of probabilities, which will normally lead to the imposition of an indefinite sentence of imprisonment. It is a milder version of the three-strikes-and-you-are-out laws popular in certain quarters in the United States, although it creates a rebuttable presumption rather than imposing life imprisonment automatically.

Mr. Hill challenged s. 753(1.1) on the basis that it contravened the presumption of innocence protected by s. 11(d) of the Canadian Charter of Rights and Freedoms, the prohibition on cruel and unusual punishments protected by s. 12, and the right not to be deprived of liberty except in accordance with principles of fundamental justice, protected by s. 7. of the Charter. Justice Bryant’s decision deals mostly with s. 7. (S. 11(d) doesn’t apply at the sentencing stage, and there is no need to consider s. 12).

S. 7 is obviously engaged by s. 753(1.1) of the Criminal Code, since it makes the imposition of an indeterminate sentence much more likely than it would have been in its absence. Instead of the Crown having to prove beyond a reasonable doubt that an accused meets the criteria for being classified as a dangerous offender, as it has to prove any other element of the offence or aggravating circumstance that can increase the sentence to be imposed, s. 753(1.1) provides that the accused is presumed to meet these criteria unless he can show otherwise. The reversal of the burden of proof is all the more significant since it frees the Crown not from the civil balance-of-probabilities burden, but from the much heavier beyond-reasonable-doubt one.

That is problematic, holds justice Bryant. After reviewing the jurisprudence on the presumption of innocence (which is relevant, despite not being directly applicable at the sentencing stage, once the accused’s guilt has been established) and the burden of proof in criminal cases, he concludes that “the onus and standard of proof for aggravating factors are principles of fundamental justice” within the meaning of the Charter (par. 52). Yet even if the accused manages to raise reasonable doubts about whether he really meets the criteria to be classified a dangerous offender, s. 753(1.1) provides that he must still be classified as such, if he cannot meet the rather more difficult standard of the balance of probabilities. For this reason, s. 753(1.1) is “in prima facie violation of the principles of fundamental justice” (par. 56). Justice Bryant refers to R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, in which Justice Abella argued, in her majority reasons, that

[a] young person should receive, at the very least, the same procedural benefit afforded to a convicted adult on sentencing, namely, that the burden is on the Crown to demonstrate why a more severe sentence is necessary and appropriate in any given case (par. 82).

The circle is now complete: young offenders must receive the same benefits as adults; adults now must receive the same benefit as young offenders. That seems like a dubious argument to me, but the conclusion that freeing the Crown from the burden of proving an aggravating factor beyond a reasonable doubt is contrary to fundamental principles of Canadian criminal law seems exactly right.

Justice Bryant then turns to the government’s attempt to justify s. 753(1.1) pursuant to s. 1 of the Charter. Its objective of protecting members of the public against threats to their life and health is pressing and substantial. But it is not necessary to achieve it: “[t]he Crown did not adduce evidence that a reversal of the onus of proof was necessary to overcome practical evidentiary hurdles which impede the successful prosecution of dangerous offenders” (par. 64). The Crown has access to the necessary evidence; it can require the accused to undergo a psychiatric assessment. It doesn’t need the shortcut created by s. 753(1.1). Furthermore, as the Supreme Court held in D.B., even if the possibility of a heavy (or, here, indefinite) sentence being imposed is necessary to protect the public it is not necessary for its imposition to be easy. Justice Bryant concludes that “it is the availability of an indeterminate sentence which advances the objective of the protection of the public rather than the allocation of the onus of proof to the offender” (par. 70). For no benefit, s. 753(1.1) exacts a heavy cost since, as the Crown’s expert psychiatrist testified, it might require the indefinite imprisonment of people the basis of evidence which, from a scientific point of view, is insufficient to deem them dangerous. It is thus not only unnecessary, but disproportionate. S. 1 cannot save it.

Sounds right to me. Too bad though, that we don’t have a three-strikes-and-you’re-out rule of constitutionality: there have already been more than three strikes against the Tories’ tough-on-crime legislation.

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.