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.

Truth and Sentencing

In a pair of decisions delivered this morning, R. v. Summers, 2014 SCC 26, and a companion case, R. v. Carvery, 2014 SCC 27, the Supreme Court has endorsed the trial courts’ practice of routinely crediting time spent by accused persons before their sentencing on a more than one-to-one basis against the total duration of their sentence, the Truth in Sentencing Act, enacted by Parliament in 2009, notwithstanding. The provisions that statute added to the Criminal Code state that “the [sentencing] court shall limit any credit for that time to a maximum of one day for each day spent in custody” but add that “despite” this rule, “if the circumstances justify it, the maximum is one and one-half days for each day spent in custody,” except in some cases where this enhancement is not available.

The government argued that the enhanced credit was meant to be the exception, not the rule. In particular, the government contended that it should not be granted merely to compensate for the fact that pre-sentence custody does not count for the purposes of determining when an offender becomes eligible to one or another form of early release (such as parole at 1⁄3 or statutory release at 2⁄3 of the sentence). In a unanimous opinion written by Justice Karakatsanis, the Supreme Court rejects this position, holding that the statute, as written, provides no basis for it.

There are two reasons, Justice Karakatsanis points out, why courts often choose to grant enhanced credit for pre-sentence detention:

[f]irst, the quantitative rationale for the practice of granting enhanced credit is to ensure that the offender does not spend more time behind bars than if he had been released on bail (par. 23).

Importantly, because almost all offenders benefit from some form early release, this quantitative rationale applies to most sentencing cases. “The second rationale for enhanced credit,” explains Justice Karakatsanis,

is qualitative in nature. Remand detention centres tend not to provide the educational, retraining or rehabilitation programs that are generally available when serving a sentence in corrections facilities. Consequently, time in pre-trial detention is often more onerous than post-sentence incarceration. … [O]vercrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous.

Courts had thus developed a practice of crediting pre-sentence detention at a ratio of two days for one, and sometimes more, to account for both its quantitative and its qualitative effects. The Truth in Sentencing Act explicitly caps the credit at 1.5 days for one. But does it limit the “circumstances” that “justify” the granting of enhanced credit?

Justice Karakatsanis finds that it does not. The statute’s text makes no mention of “exceptional” circumstances or of any other qualification on what the relevant “circumstances” might be that would exclude the effects of rules on eligibility for early release. The fact that the statute presents enhanced credit as exceptional is not significant. There is no rule that says that exemptions may not be numerous than the cases where the rule applies, and indeed the government “accepts that the lack of programs in detention facilities and overcrowding are common problems, and could result in” this being the case here (par. 47). Furthermore, Parliament must be presumed to have been aware of both the quantitative and the qualitative rationales for enhanced credit, and its failure to exclude them from consideration suggests that it had no intention of doing so. Finally, refusing to account for the effects of pre-sentence detention not counting towards early release violates the principle that similar crimes should receive similar punishment:

it is difficult to see how sentences can reliably be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 [of the Criminal Code]) when the length of incarceration is also a product of the offender’s ability to obtain bail, which is frequently dependent on totally different criteria.

Some offenders ― Aboriginal persons in particular, but more generally all those who are isolated, marginalized, or impoverished ― will have more trouble obtaining bail than others, and would be punished more harshly for identical crimes.

Justice Karakatsanis concludes, therefore, that the old approach to the determination of enhanced credit should remain in place, subject to the cap imposed by the Truth in Sentencing Act. Even the cap, she adds, might not be unbreakable:

individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter.

The Supreme Court’s decision strikes me as obviously right. There are, however, some interesting questions concerning its implications. The obvious one is whether Parliament could re-write the law, perhaps enacting a “Truth in Truth in Sentencing Act” that would specifically prevent courts from considering the “quantitative rationale” for enhanced credit. If the problem is simply that Parliament had not spoken clearly enough, it can speak more clearly. However, the part of the opinion ― which Justice Karakatsanis notes is not even necessary to dispose of the case ― which discusses the violations of the principles of parity and proportionality that would result from not considering the “quantitative rationale” seem to me to be a thinly disguised warning to Parliament against taking that course. It could be transposed, almost verbatim, into an arbitrariness analysis under s. 7 of the Charter which would lead to the inexorable conclusion that the exclusion of the “quantitative rationale” amounts to a deprivation of liberty in violation of a principle of fundamental justice.

Indeed, the question of whether the current cap on enhanced credit is constitutional ― which the Court did not address since no constitutional challenge was before it ― remains open. Justice Karakatsanis suggests that in some cases, the courts’ inability to give credit that accounts for both the “quantitative rationale” and the “qualitative” one is unjust, and explicitly suggests that some offenders, whom it impacts especially severely, look to “remedies … under s. 24(1) of the Charter.” Yet this is an odd suggestion. In the somewhat similar context of inquiring into the constitutionality of mandatory minimum sentences, the Supreme Court has rejected the “constitutional exemption” approach ― allowing sentences below the mandatory minimum when that minimum amounted, for a particular offender, to cruel and unusual punishment contrary to s. 12 of the Charter. In such cases, the Court held in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the entire mandatory minimum provision must be struck down. I’m not sure why it would be any different with the cap on enhanced credit which, like the mandatory minimum, results in some (though not all) offenders having to spend more time in prison than their circumstances justify. Could it be that the Court actually thinks that the cap is unconstitutional, and is simply reluctant to say so in so many words?

Be that as it may, this is an encouraging (and encouragingly unanimous) decision by the Supreme Court. At the very least, it shows that Courts will not take hints from Parliament in advancing the current government’s “tough on crime” agenda. If Parliament wishes to be mean, it must be clear about it. To the extent that it leaves courts discretion, they will use it to try to preserve some sense and equity in the criminal justice system. Beyond that, there is hint ― only a hint perhaps, but a fairly strong one ― that, should Parliament attempt to up the ante by eliminating this discretion, courts will respond by calling the constitution to the rescue. The truth about sentencing, as the Supreme Court suggests, is that it should be about the individual crime and the person who committed it. Not whatever tough-sounding rhetoric a government chooses to employ.

NOTE: Michael Spratt also comments on the Summers decision.

The Limits of Independence

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

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

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

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

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

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

A Bar Brawl

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

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

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

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

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

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

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

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

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

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

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

Petty Punishment

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

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

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

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

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

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

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

A Strike against Three Strikes

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

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

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

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

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

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

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

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