R v Poulin: Charter Interpretation in the Spotlight

Introduction

Section 11 (i) of the Charter guarantees the right to offenders “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.” Ambiguity ripples through this provision. Most notably, does the provision (a) denote a comparison of the lesser sentence at two relevant times (commission and sentencing) or (b) does it denote a broader look at all the changes in various sentencing provisions, as part of a consideration of variations between the time of the commission of the offence and the sentence? This latter approach could permit an offender to be entitled to a lesser sentence than the relevant ones in force at either the time of commission or the time of sentencing.

This was the issue faced in R v Poulin: does the former approach, called the “binary approach,” apply, or does the latter approach, called the “global approach” apply? Mr. Poulin sought a right to a conditional sentence, which was not in force at the time of the commission of his offence or at the time of sentencing. The conditional sentence, however, entered into force as a form of sentence in 1996 [10]. A global approach would permit Mr. Poulin to access a conditional sentence, because it was in force for a period of time between commission and sentence. A binary approach would not permit Mr. Poulin to access the sentence, because it was in force neither at the time of commission or the time of sentence (I note that there was a mootness issue raised in the case, which I do not address here).

Decision

The majority, written by Martin J, ultimately chose the binary approach. Despite the fact that the global approach is preferred among lower courts, Martin J wrote that “[r]ather than identifying the principles or purposes underlying s.11(i), [the lower courts] have simply concluded that s.11(i) should be given the interpretation most generous to the accused, which they have called the liberal interpretation” [55]. Rather, to Martin J, one must approach s.11(i) from a purposive perspective, as instructed by the Supreme Court in its seminal Charter cases: see Big M, Hunter v Southam [54].

A purposive approach to Charter interpretation, as noted by Martin J, should not be conflated with a generous interpretation [53-54]. Charter rights must be “interpreted liberally within the limits that their purposes allow”[54]. Purpose is found by looking at the language of a particular Charter provision [64], and the original context at the time of its enactment [72]; in other words, the language of the right in its “historic and philosophic” context: Big M Drug Mart, at para 117.

Conducting this analysis, Martin J found that the language of s.11(i) favoured the binary approach. In support of a global interpretation, the respondents relied on the language of s.11(i), which says that the offender is entitled to the lesser of two sentences if the sentence has been varied between the time of commission and sentence. To the respondents, “between” denotes an interval of time, not a measurement of two distinct periods of time. But Martin J ultimately concluded that this intervallic interpretation did not suggest a global interpretation: (“between” “only tells us that s.11(i) concerns itself with the situation where the punishment has been ‘varied between’ the time of the offence and the time of sentencing’” [67]). Rather, to her, the word “lesser” in the provision “evokes the comparison of two options” [68]. This language bounded the purpose of s.11(i) to a binary interpretation. What’s more, reviewing the context of s.11(i) at the time of its enactment, Martin J concluded that there “was nothing to inspire a global s.11(i) right at the time of its drafting and enactment,” in part because “none of the [international] enactments embraced one…” [72].

Martin J then noted that, even after this textual and contextual analysis, “[w]hat remains to be seen is whether the purposes of s.11(i) support a global interpretation of s.11(i), or whether there is any purposive basis to read s.11(i) globally…s.11(i) could still receive [a global] interpretation it its purposes justified it” [85]. Specifically, Poulin submitted that “a binary interpretation of s.11(i) would result in unfairness…where two offenders who committed the same crime at the same time are sentenced at different times, when different sentencing regimes are in force” [87]. Martin J rebuffed this argument by making three points: (1) relative punishments are “linked to the offender and the proceedings against him” and thus “are tethered to two points in time that bear a deep connection to the offender’s conduct and criminality” [90]; (2) a global approach would not ensure identical results for two offenders in the circumstances Poulin describes [95]; and (3) a global approach would disproportionately benefit those offenders who have a long period of time between commission and sentence, because it would allow the offender to pick and choose the lesser punishment [97]. What’s more, importantly, a global right would resurrect punishments “which Parliament has, by repealing or amending them, expressly rejected…” [100].

The dissent, penned by Karakatsanis J, disagreed. To her, the text of s.11(i) suggests a “continuum between the time of commission and the time of sentencing” [148]. Also, “lesser” does not denote a solely binary interpretation [149]. The consequence of this binary “technical” interpretation, to Karakatsanis J, “is contrary to this Court’s conclusion that a generous and purposive approach must be taken to the interpretation of Charter rights” [151]. Put this way, “there is no principled argument that would justify such a limitation…” [153]. Karakatsanis J’s point is due, in part, to the reliance interests that an offender has in choosing a particular course of action, central to the idea of the Rule of Law [152]. All of the choices an offender has to make in the criminal process, to Karakatsanis J, should not be made on the basis of two artificial points in that process [153]. Instead, the entire continuum of possible options should serve to benefit the offender.

Analysis

In my view, the majority clearly had the better argument in this case. This is true for a number of reasons.

First, as a matter of criminal law, it seems odd to me that an offender can pick and choose the lesser sentence that was in force (if only briefly) in between the time of offence and the time of sentence. Yet this is the upshot of the global interpretive approach to s.11(i). As Martin J notes, the time of commission and the time of sentence are not two “artificial points” for a particular offender, as Karakatsanis J opined. Rather, they are points that are intimately connected to a particular offender and his crimes. When an offender chooses to commit a crime, he chooses with the backdrop of the existing law behind him. When an offender is sentenced, it would be truly unfair to subject her to a greater sentence than the one she risked at the time of offence; but one can hardly call it unfair to limit the potential sentencing options to those in force when the offender made the relevant choice and when he is about to be given the sentence. Indeed, this is what is textually prescribed by s.11(i). Karakatsanis J would respond that other choices–such as the choice to instruct counsel, and the choice to accept a plea agreement–are relevant on this spectrum. But as Martin J said, the right to s.11(i) does not speak to all of these choices. Rather, the text mentions the time of the offence and the time of sentence, and so “there is no principled basis to grant an offender… the benefit of a punishment which has no connection to his offending conduct or to society’s view of his conduct at the time the court is called upon to pass sentence” [90].

Secondly, Martin J is completely right to note that there are powerful Rule of Law reasons to reject a global approach, insomuch as that approach revives sentences that the people, through Parliament, rejected. Section 11(i) is a constitutional right that basically incorporates by reference Parliament’s choices. It would be an odd consequence of a global approach that Parliament’s choices—which have since been repealed—should give effect to a particular constitutional provision. This would have the effect of subjecting someone to a law—perhaps a favourable one, true—that is no longer on the books. Yet this is contrary to a basic premise of the Rule of Law, which undergirds s.11(i) as a fundamental purpose.

Thirdly, the majority’s purposive analysis is far more convincing than the dissent’s, in both general terms and in its assessment of text. The majority is absolutely correct to draw a distinction between a “purposive” approach to interpretation and a “generous” approach to interpretation. These do not mean the same thing. As Professor Hogg noted long ago, a purposive approach will tend to narrow a right to clearly defined purposes. In this sense, it would be odd to speak of a purposive approach operating concurrently with a generous approach—except to the extent, as Martin J notes, that one can interpret particularly rights generously within their purposes. But this strikes me as dancing on the head of a pin. More likely, a purposive approach will narrow a right to defined purposes. This makes the dissent’s focus on “generous” and “purposive” interpretation somewhat nonsensical.

The majority, sensibly, first looked to the text to set the boundaries on the right. This is a preferable approach to reasoning backwards from putative purposes, and then using those purposes to denote the meaning of text. Starting with the text makes sense because it is the meaning of the text that is under consideration. We move on to deriving purposes from that text, not the other way around. And on this front, the majority’s textual analysis is preferable to the dissent’s. The dissent relied only on dictionary meanings to discern the meaning of the text. But this is a thin reed on which to rest the meaning of text which arose not in a dictionary, but in the context of constitutional debates among human beings. Rather, the majority focused on the common usage and understanding of the word “lesser,” as real human beings use it:

Whereas comparative terms ending in “est” or “st” single out one thing from the others, comparative terms ending in “er” contrast one thing with another. For instance, we speak of the “better” of two options and the “best” of multiple, the “higher” of two heights and the “highest” of multiple, the “faster” of two speeds and “fastest” of multiple, to give only a few examples. Instead of employing the obviously global phrase “the least severe punishment” (or even “the lowest punishment”), s. 11 (i) uses the binary language “the lesser punishment”.

This is more persuasive than dusting off a dictionary and using that as a sole or determinative basis on which to discern text. While dictionary meanings can shed light on text, common usage should be a key concern of textual interpretation, where dictionary and common meaning differ.

Conclusion

This case raises lots of interesting issues, both relating to the Constitution and to criminal law. Ultimately, I think the majority had the better of the argument.

Sentencing Judgment Found Inside a Chinese Fortune Cookie

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

This post is co-written with Maxime St-Hilaire

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

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

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

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

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


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

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

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

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

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


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

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

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

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

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

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

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


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

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

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

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


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

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

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

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

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

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.

Minimum Agreement

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

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

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

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

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

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

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

Fear-Mongering

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

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

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

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

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

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

To show that a law interferes with judicial independence,

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

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

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

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

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

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

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

Nothing Is Always Absolutely So

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

* * *

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

* * *

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

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

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

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

* * *

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

Judge Kopf on Mandatory Minimums

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

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

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

Judge Kopf’s answer is that

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

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

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

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

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

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

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

A Standing Invitation

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

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

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

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

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

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

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

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

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

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

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

Where Credit Is Due

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

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

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

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

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

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

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

What this means is that

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

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

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

In short, subs. 719(3.1)

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

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

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

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

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

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

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

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

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

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

Open Bar

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

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

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

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

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

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

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

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

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

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