tough on crime – Double Aspect

Unusual Indeed

The trouble with a caustic, pseudo-originalist opinion of Wakeling JA

In my last post, I described the decision of the Alberta Court of Appeal in R v Hills, 2020 ABCA 263, which upheld a mandatory minimum sentence for the offence of firing a gun into a place “knowing that or being reckless as to whether another person” is there. Two of the judges, Justices O’Ferrall and Wakeling delivered concurring opinions in which they called on the Supreme Court to reconsider its jurisprudence on mandatory minimum sentences and indeed on the interpretation of section 12 of the Canadian Charter of Rights and Freedoms, which protects against “any cruel and unusual treatment or punishment”, more broadly, notably R v Smith, [1987] 1 SCR 1045 and R v Nur, 2015 SCC 15, [2015] 1 SCR 773. I summarized the arguments made by both of the concurring judges in the last post.

Here, I consider specifically Justice Wakeling’s opinion. It is very unusual indeed, in both substance and form. It deploys unorthodox and, in my view, untenable, interpretive techniques, and arrives at startling conclusions. It is long, seemingly scholarly (though there is less real scholarship to it than meets the eye), and caustic. I don’t recall reading anything quite like it in Canada, though admittedly I do not read as many judgments as I would like, especially below the Supreme Court level.

Let me begin with Justice Wakeling’s approach to constitutional interpretation. Justice Wakeling does not explain what he is doing, which is unfortunate, because an explanation might have clarified matters ― not least to Justice Wakeling himself. Be that as it may, what Justice Wakeling seemingly does is resort to a sort of expected applications originalism. This is a way of describing attempts to interpret constitutional provisions by asking how their framers would have expected a question about their application to be resolved. This is a fool’s errand. Serious originalists have long given up on what Benjamin Oliphant and I have described as “speculative transgenerational mind reading”. (126) As Randy Barnett has written, “ascertaining ‘what the framers would have done’ is a counterfactual, not a factual or historical inquiry”. (71)

But Justice Wakeling’s version of expected applications originalism is particularly bad, because he refers to a great extent to events and real or purported beliefs that long predate the enactment of the Charter. Indeed his discussion of the Charter and the views, if any, of its framers is remarkably brief. Justice Wakeling points out that the late

Professor Hogg predicted in 1982 that Canadian courts would give section 12 of the Charter “the same interpretation” courts gave section 2(b) of the Canadian Bill of Rights. In other words, section 12 was of minimal value. Modern political realities made a constitutional death-penalty watch dog unnecessary. And that was the only role section 12 was intended to serve. [217; references omitted]

Most of what Justice Wakeling has to say about the meaning of section 12 goes back much further. The Bill of Rights 1688 is of special significance to him, as he argues that its

prohibition of cruel and unusual punishment was undoubtedly a response, either entirely or, at least partially, to the blood-thirsty sanctions Chief Justice Jeffrey and the other judges imposed on supporters of the 1685 Monmouth Rebellion that challenged the rule of the Catholic King James II during the Bloody Assizes of 1685 and the brutal flogging imposed on Titus Oates for his perjured testimony that cost a large number of Catholics their lives. [148]

From this, Justice Wakeling draws a straight line to the Eighth Amendment to the US Constitution, the Canadian Bill of Rights, and the section 12. He describes the US Supreme Court’s departure from the focus on “horrific penalties” akin to torture and its embrace of disproportionality as a touchstone for assessing violations of the Eighth Amendment in Weems v United States, 217 U.S. 349 (1910) as “judicial heresy”, and writes of the author of the majority opinion in that case that “Justice McKenna’s fingerprints are all over” Smith, [187] and thus subsequent section 12 jurisprudence.

This approach to the interpretation of section 12 makes no sense. Even on an originalist view, why should the meaning of the Charter be determined by what might have been the intentions or expectations not of its framers, but of those of the Bill of Rights 1688, the Eighth Amendment, or even the Canadian Bill of Rights? This isn’t expected applications originalism but expected applications pre-originalism. I know of no precedent or justification for it.

The better originalist approach is that which focuses on the public meaning of constitutional provisions. Historical antecedents are not irrelevant to establishing public meaning (and I have referred to the Magna Carta and the Bill of Rights 1688 myself in writing about section 12 here). However, they are useful in that they ― and their interpretation ― helps us ascertain how a contemporaneous reader would have understood the provision when it was enacted. That being so, the signicance of Weems and subsequent American jurisprudence is very different from that which Justice Wakeling attributes to them. Whether or not they were accurate interpretations of the Eighth Amendment’s original meaning is beside the point. What is noteworthy is that these interpretations would have been part of the context in which section 12 was enacted, and so colour the public meaning the phrase “cruel and unusual punishment” had by the time the Charter was adopted.

A related problem with Justice Wakeling’s approach to interpretation is his use of texts that use wording different from that of section 12 to suggest that the meaning of section must be different. This can be a very useful interpretive tool, but it has to be wielded carefully and honestly. Justice Wakeling relies on three comparisons: with early the constitutions of some American States; with a rejected draft of the Canadian Bill of Rights; and with section 9 of the New Zealand Bill of Rights Act 1990. All of these texts explicitly refer to proportionality, whereas section 12 does not.

Of these, the American texts are somewhat expansive policy statements, of a kind that was mostly ― except, notoriously, in the case of the Second Amendment ― rejected in (what became known as) the US Bill of Rights. The absence of such a statement from the Eighth Amendment doesn’t prove that it disproportionality is not part of its permissible construction. (Somewhat similarly, the absence of an explicit reference to separation of powers, analogous to that found in some State constitutions, in the US Constitution doesn’t mean it does not in fact provide for separate powers.)

With respect to the proposed wording of the Canadian Bill of Rights, Justice Wakeling says that “[a] number of commentators criticized its vagueness”. [201; reference omitted] The concerns of the only such commentator whom Justice Wakeling actually quotes are telling, for he worried, in part about whether a reference to “inhuman or degrading” punishment might be taken to outlaw flogging. Yet Justice Wakeling himself notes that the British “Parliament has repealed the brutal punishments that prompted the 1689 Parliamentary prohibition of cruel and unusual punishments” [153] ― including “flogging”! [154] That commentator’s concerns, in other words, do not deserve to be taken seriously, on Justice Wakeling’s own account. (The reference to flogging is interesting in another way, to which I will shorty turn.) And anyway the exclusion of words like “inhuman” because of their vagueness does not prove that the words retained did not have an element of vagueness calling for construction.

Lastly, the reference to the New Zealand Bill of Rights Act strikes me as quite inappropriate, since that statute was enacted eight years after the Charter. Some of its provisions sought to remedy avoid the Charter‘s real or perceived ambiguities; they tend to be more specific than the Charter‘s. (Compare, for example, New Zealand’s distinct provisions on “freedom of thought, conscience, and religion” and the “manifestation of religion and belief” with section 2(a) of the Charter.) In the case of section 9, one might suppose ― I have not looked into this ― that they New Zealand drafters thought that the outcome of Smith was justified and wrote it into the statute in so many words for the avoidance of doubt. But their choice to do so does not mean tell us anything about the meaning of the Charter, whose drafters were obviously not aware of the subsequent work of their Kiwi counterparts.

The last interpretive issue I will address here is Justice Wakeling’s reading of section 12 as a mere enumeration, and a remarkably brief one at that, of prohibited punishments. One striking consequence of this reading is that Justice Wakeling thinks that, because imprisonment was a commonly used punishment when the Charter was enacted and thus not unusual,

section 12 … does not allow a court to declare jail sentences cruel or unusual punishments. … [O]ffenders may not invoke section 12 to challenge either mandatory-minimum or mandatory-maximum jail sentences or any other jail sentence. [244]

(It is worth noting that Justice O’Ferrall “question[s]” [115] and indeed seems to reject this view.)

Justice Wakeling repeats a mistake committed by Justice Scalia, including in his comments on the Eighth Amendment in the famous lecture “Originalism: The Lesser Evil”. Justice Wakeling refers to some of Justice Scalia’s decisions seeking to limit the import of the Eighth Amendment to the 1791 catalogue of barbarity ― but not to that lecture where, tellingly, Justice Scalia professed being a “faint-hearted” originalist, because he wouldn’t bring himself to countenance the punishment of flogging even if was practised in 1791. The catalogue approach, it seems, doesn’t really work.

In a lecture of his own, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism“, Randy Barnett explains why. He points out that

original public meaning originalism attempts to identify the level of generality in which the Constitution is objectively expressed. Does the text ban particular punishments of which they were aware, or does it ban all cruel and unusual punishments? (23)

As Professor Barnett notes, “[t]his is not to say … the broader provisions of the text lack all historical meaning and are open to anything we may wish them to mean”. (23) But that meaning, if there is one, must be established with reference to the time of those provisions’ enactment ― not to a period that preceded it by two or three centuries. Justice Wakeling’s own reasons suggest that, whatever may have been the case in 1689 or even 1791, the phrase “cruel and unusual” may well have acquired a broad and morally loaded meaning by 1982. He does not even contemplate this possibility.

This leads me to concerns about the form and tone of Justice Wakeling’s opinion. It has an air of scholarliness: at over 12,000 words and 200 footnotes, it has the heft of an academic article. And yet this is only an appearance. It is inimical to good scholarship ― even, I would argue, in a judicial opinion, and not only in an academic setting ― to ignore counter-arguments and relevant sources that do not support one’s claims. Meanwhile, a great many of those footnotes turns out to cite to Justice Wakeling’s own opinions; a flaw of much academic writing, my own not excepted, but manifested here to an inordinate degree.

And then there is the bitter vehemence of Justice Wakeling’s writing. From the outset, he heaps scorn on the Supreme Court’s precedents, calling the “reasonable hypothetical” approach to section 12 they command “remarkable, to say the least”, [124] and claim that “[t]here is no constitutional doctrine that justifies this unusual method”. The decision in Smith is “surprising[]” [219] and “unexpected”. [220] “The contribution” that an argument made by Justice Lamer ― to whom Justice Wakeling denies the courtesy of a “as he then was” ― “makes to the debate is difficult to comprehend”. [226]

But Canadian courts and judges are not the only targets of Justice Wakeling’s contempt. I have already referred to his desription of Weems as “heresy”. If this were said about a fellow judge on Justice Wakeling’s court, this would be as mean as any of Justice Scalia’s cantankerous dissents. Still, such disagreements can appropriately be aired. But judges do not normally take it upon themselves to critique their colleagues in other jurisdictions. Not only is Justice Wakeling not qualified to pronounce on what it orthodox and what is heretical under American law ― it’s just not his job. Not content with commentary on the past, however, Justice Wakeling dabbles in political prognostication too, declaring that he

suspect[s] that the likelihood that additional states will abolish the death penalty is probably about the same as the likelihood that the Supreme Court – with a majority of conservative-minded justices – will sanction additional limits on the availability of the death penalty. [181; reference omitted]

To be clear, I have no objection to a judge expressing disagreement with the jurisprudence of a higher court. On the contrary, judicial criticism of binding authority ― so long as that authority is followed ― can be valuable; no less, and arguably more, than that of scholars and other commentators. If the lower courts are saying that a legal doctrine is not working well, the higher courts would do well to listen ― though they need not agree, and they should not agree in this case, as I argued in my last post. Justice O’Ferrall’s opinion strikes me as perfectly fine. But not so Justice Wakeling’s.

I have been tone-policed enough to be wary of engaging in such critiques myself. But Justice Wakeling is, after all, a judge ― and I think that judges can rightly be held to a standard of equanimity that should not be applied to academics, whose role it is to critique, and sometimes criticize, the exercise of the judicial power. I have also defended the use of strong language in judicial opinions. Still, there are lines not to be crossed. A judge ought not to be dismissive or petulant; nor should he engage in political commentary or, I think, make any sort of pronouncement on the merits of the laws (enacted or judicially articulated) of other countries. Justice Wakeling is and does all of these things. If he wants to act like a politically preoccupied professor, he should resign his judicial office.

I do not know how widespread the views expressed by Justices O’Ferrall and Wakeling are. Perhaps the Supreme Court will take heed and reconsider its jurisprudence in relation to section 12. In any case it will face other difficult questions about the interpretation of the Charter. Justice Wakeling’s opinion illustrates a number of things not to do in such cases. Courts should not look to the ways the authors of constitutional provisions, let alone the authors of their predecessors, expected these provisions to be applied. They should not be careless, let alone deliberately unfair, when they compare different texts. They should not convert moral language into laundry lists. And, of course, they should not be mean-spirited. Justice Wakeling’s opinion is unusual indeed, and I hope it stays that way.

Counter-Rebellion

Judges of the Alberta Court of Appeal question the Supreme Court’s jurisprudence on mandatory minimum sentences

Last month the Alberta Court of Appeal issued an interesting decision that concerned the constitutionality of yet another mandatory minimum sentence, this one in section 244.2 of the Criminal Code, for “intentionally discharg[ing] a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place”. The mandatory minimum is four years’ imprisonment (or more if organized crime is involved). For fairly straightforward rasons given by Justice Antonio, R v Hills, 2020 ABCA 263, upholds the four-year mandatory minimum, rejecting the claim that it is “cruel and unusual” within the meaning of section 12 of the Canadian Charter of Rights and Freedoms.

But in separate concurring reasons Justices O’Ferrall and Wakeling go on to criticize the Supreme Court’s approach for dealing with such cases. Both concurring opinions raise important questions, not only about the correct approach to mandatory minimum sentences under section 12 of the Charter, but also about constitutional interpretation and construction more broadly.

In this post, I summarize Justice Antonio’s lead opinion, as well as the common aspects of the two concurring ones, and explain why I think the Supreme Court is right and Justices O’Ferrall and Wakeling are wrong about section 12. In a follow up post, I shall write in some detail about Justice Wakeling’s opinion, which is startling, and startlingly wrong, in its method and tone, and deserves special attention and criticism.

In R v Smith, [1987] 1 SCR 1045 and, more recently, R v Nur, 2015 SCC 15, [2015] 1 SCR 773, the Supreme Court held that a mandatory minimum sentence that is “grossly disproportionate” to the gravity and blameworthiness of an offence is “cruel and unusual” within the meaning of section 12. Gross disproportionality can be shown either in the particular case or, alternatively ― and controversially ―, in a reasonable hypothetical, a set of circumstances that can be expected to occur and that would be captured by the impugned provision. This is the approach that the accused in Hills took.

Mr. Hills pleaded guilty to having repeatedly fired a rifle “suitable for big game hunting” [4] into the walls and windows of a family residence ― among with less frightening misdeeds, all part of a rampage undertaken in a state that a former Toronto mayor would have described as drunken stupor. The sentencing judge considered that the mandatory minimum would not be grossly disproportionate to his offence, but it could be in a reasonable hypothetical, mainly because the applicable definition of “firearm” captures weapons shown by an expert to be incapable of penetrating a typical building wall. One could therefore reasonably imagine the four-year sentence being imposed on a person who fired a weapon “at a place” whose occupants were not thereby endangered. The judge sentenced Mr. Hills to three and a half years’ imprisonment.

Justice Antonio (with whose reasons Justice O’Ferrall agrees, so far as they go) considers this to be an error. This is because the shots fired even from low-power weapons might “penetrate a door or window”. [80] Moreover, the weapons or the shots might alarm bystanders or the people inside the place at which they are fired, and generally undermine “the feeling the safety in communities”. [82] Justice Antonio also refers to Nur, where

a 40-month sentence was imposed on a 19-year-old first offender who merely possessed a loaded firearm in a public place for a short period of time and did not discharge it or use it in a threatening manner. If 40 months was an appropriate sentence in the Nur case, then an additional eight months as a mandatory minimum penalty where a firearm was actually used does not amount to a grossly disproportionate sentence.

Justice Antonio concludes that a fit sentence for Mr. Hills would be four and a half years’ imprisonment.

As mentioned above, Justices O’Ferrall and Wakeling both call for the Supreme Court’s decisions in Smith and Nur to be revisited insofar as they require the courts to undertake gross disproportionality analysis based on reasonable hypotheticals, and not only the facts before the sentencing court. Some of the arguments they make are similar. I address them here. Justice Wakeling’s opinion also makes additional points not raised by Justice O’Ferrall. I turn to them below.

The main argument on which Justices O’Ferrall and Wakeling rely is that the use of reasonable hypotheticals to test the constitutionality of mandatory minimum sentences is inconsistent with the import of section 12. Justice O’Ferrall argues that

[a]n interpretation [of the Charter] which relies on the presumed detriment to a non-existent offender if a certain term of imprisonment is imposed is not an interpretation which a citizen would contemplate. It is an interpretation which might legitimately surprise the citizen. It does not flow logically from the text of s.12 of the Charter. [108; see aslo Justice Wakeling’s comment at [126]]

For Justices O’Ferrall and Wakeling, since section 12 protects an individual “right not to be subjected to any cruel and unusual treatment or punishment”, only the situation of the offender before the court can be taken into consideration, and the courts should avoid invalidating provisions that might only hypothetically result in unconstitutional applications. Just as laws are not invalidated because they might be invoked to effect unconstitutional arrests, they should not be disturbed because they might, in some cases, lead to unconstitutional sentences. As Justice O’Ferrall puts it, “[b]ut for the approved reasonable hypothetical analysis, the accused could [sic] care less about the constitutionality of the law. His complaint is with respect to his treatment or punishment”. [109]

Indeed, Justices O’Ferrall and Wakeling reject the test of “gross disproportionality” itself, which the Supreme Court has long used as a proxy for deciding whether a punishment is cruel and unusual. Justice O’Ferrall argues that

A sentence may be disproportionate from the perspective of both the offender and the offence and yet … prescribed to achieve the fundamental purpose of sentencing, namely protecting society. Even a grossly disproportionate sentence may not be found to constitute cruel and unusual punishment if, for example, in order to stem the tide of a deadly pandemic, Parliament found it necessary to prescribe extremely harsh punishments for what otherwise might be regarded as minor misdemeanors. [117; see also Justice Wakeling’s comment at [132]]

I do not think that any of this is right.

Start with the meaning of section 12. The concurring opinions go wrong because they fail to distinguish between the interpretation and the construction of constitutional provisions. Interpretation is the activity of ascertaining the communicative content of the text. Construction is the elaboration of doctrines that allow the text to be given legal effect. Some cases can be resolved at the interpretation stage. As I have argued here, the interpretation of section 12, and specifically of the word “cruel”, can tell us that this provision does not protect corporations. But in other cases courts need to engage in (good faith) construction to apply vague language ― and that of section 12 is vague, if not quite as vague as some commentators would have believe.

The word “cruel” is not infinitely malleable, but it is not self-explanatory either. Unless they are going to rely on seat-of-the-pants impressionistic decision-making in every case, courts need to work out a consistent way to determine whether a given sentence is cruel and unusual. This is an exercise in construction, which is a form of legal reasoning. Unlike in the realm of interpretation, the presumed (actually, purely conjectured) reactions of reactions of citizens are not a useful guide to what the courts should do here. The courts’ task is not to avoid surprises ― the framers of the constitution make a certain degree of judicial creativity unavoidable when they use vague language ― but rather, as Randy Barnett and Evan Bernick have argued, to give effect to the purpose of the provision.

Is the test of gross disproportionality a misguided construction of section 12? In my previous post on that provision’s meaning (linked to above) I have suggested that it is not, so far as the punishment of natural persons is concerned. I wrote that “disproportionality can be a useful indication of cruelty”, provided that “also causes or reflects indifference to suffering”, which may “always be the case with grossly disproportional punishment is inflicted on human beings”. Justice O’Ferrall’s example is ambiguous and does not persuade me. It may be taken to suggest that in the circumstances of “a deadly pandemic” “what otherwise might be regarded as minor misdemeanors” become extremely blameworthy crimes. If so, there is no gross disproportionality in punishing them harshly, so long as the relevant circumstances exist. But if Justice O’Ferrall suggests that a public emergency justifies harsh punishment of unrelated offences, I don’t see how that follows.

If not the gross disproportionality test, is the reasonable hypothetical approach an impermissible construction of section 12? Actually, I think there are very good reasons for the courts to adopt it. Contrary to what Justices O’Ferrall and Wakeling say, a mandatory minimum sentence impacts an offender as to whom it would not be cruel and unusual, albeit indirectly. As Justice Arbour explained in her concurrence in R v Morrisey, [2000] 2 SCR 90,

mandatory minimum sentences … must act as an inflationary floor, setting a new minimum punishment applicable to the so-called ‘best’ offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [75]

Justice Wakeling’s own reasons illustrate this dynamic. He breaks down the range of sentences permitted by Parliament into bands for the least and most serious cases, and those in the middle. On this approach, if Parliament enacts or raises the mandatory minimum, the sentences of most offenders, except perhaps the very worst ones, go up. Of course, Parliament is entitled to intervene in sentencing. But the fact that its intervention impacts all offenders means that it is appropriate to consider its constitutionality even in cases where the minimum sentence would not have been cruel and unusual. At the risk of mixing metaphors, I think it’s not an implausible construction of section 12 to say that it does not permit the inflationary floor to be sullied by the cruelty of sentences required to be imposed even on some, albeit not all, offenders.

The other reason for the courts to continue to police reasonable hypotheticals might sound more in policy, but it too is relevant to section 12. It is plea bargaining. A prosecutor can threaten an accused person with a high mandatory minimum sentence so as to secure a guilty plea to some other, less serious offence. By the very nature of such situations, there is no scope for the mandatory minimum to be challenged; indeed the offence to which it is attached never even features before a court. But to the extent that the mandatory minimum has served to secure a guilty plea from a person who might be innocent (or at least might be able to raise a reasonable doubt about his or her guilt), its deployment by the prosecutor is, arguably, a form of cruel and unusual treatment that offends the Charter.

It has been set that the judicial response to the last Conservative government’s “tough on crime” agenda has been nothing less than a rebellion. Justice Wakeling professes himself “extremely troubled by the fact that Canadian courts have been busy striking down Criminal Code provisions that impose mandatory-minimum sentences”. [123] The concurring opinions in Hills are a counter-rebellion of sorts, directed not against Parliament but against the Supreme Court.

But the rebels are wrong. Their approach to constitutional text, which collapses interpretation and construction and oversimplifies constitutional meaning is not compelling. They fail to see the repercussions of mandatory minimum laws that deserve the suspicion with which the courts have treated them. The Supreme Court has often read constitutional provisions ― both power-conferring and rights-protecting ones ― more expansively than it should have. But I am not convinced that this is the case with section 12 of the Charter.

PS: I have neglected blogging on judicial decisions in the last couple of months, and will try to make up at least some of this backlog. If you have a case I should get onto in mind, please do get in touch.

More of the Same

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

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

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

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

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

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

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

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

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

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

Bullshit in Sentencing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Bar This Claim

A couple of recent cases that the Québec Court of Appeal should consider in deciding whether to let the Barreau’s challenge to mandatory minimums go forward.

Last Friday, the Supreme Court heard challenges to mandatory minimum sentences imposed for some gun-related offences as part of the federal government’s “tough on crime” agenda. In R. v. Nur, 2013 ONCA 677, the Court of Appeal for Ontario declared them unconstitutional because, although the sentence was not grossly disproportionate to the accused’s blameworthiness in the circumstances of that case, it could become so in a “reasonable hypothetical” situation, which made it “cruel and unusual punishment” contrary to s. 12 of the Canadian Charter of Rights and Freedoms. The “reasonable hypothetical” framework has long been a staple of s. 12 jurisprudence, going back to the Supreme Court’s decision in R. v. Smith, [1987] 1 S.C.R. 1045. Yet as Justin Ling explains in the CBA National Magazine, during last week’s argument in Nur, “many on the top bench were pondering a departure from the practice.”

And that, I would suggest, should be food for thought for the judges of the Québec Court of Appeal who, on December 4, will hear an appeal from the Superior Court’s decision to allow the Québec Bar to challenge, wholesale, 94 mandatory-minimum provisions recently added to the Criminal Code, Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863. As I explained in criticizing the Superior Court’s decision, although Justice Roy found that the Barreau’s challenge is a “reasonable and effective” way to make the argument that mandatory minimum sentences unconstitutionally infringe on the judiciary’s discretionary powers, this argument is at best secondary in the Barreau’s application. The main one is of the sort that was made in Nur ― a claim that mandatory minimum sentences infringe s. 12 of the Charter. Needless to say, this argument proceeds in a factual vacuum, since no one actually accused of anything is involved in the case. The Barreau contends that this does not matter since s. 12 arguments can be made on the basis of reasonable hypotheticals anyway. But if the Supreme Court chooses to eliminate, or even merely to limit the use of reasonable hypotheticals in s. 12 analysis, this claim will ring more hollow than ever.

As for the claim that mandatory minimum sentences as such infringe the judiciary’s protected discretion, I remain of the view ― which I explained here ― that it is simply not a serious argument. On this point, the words of Chief Justice MacDonald of the Nova Scotia Court of Appeal in the recent case of R. v. MacDonald, 2014 NSCA 102, which struck down the same mandatory minimum that is at issue in Nur, are apposite. The case, he said (at par. 9), is about

the comparative roles of the judiciary and Parliament. Specifically, 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)

It is Parliament’s role, not the courts’, to define the range ― that is to say the upper as well as the lower limits, if any ― of sentences for the offences which Parliament creates. It should go without saying that a power to create and define offences entails the power to define their relative gravity, and that the imposition of sentencing ranges is the most obvious (and maybe the only?) way to meaningfully do this. The only constraint on Parliament’s discretion in this regard is the Charter. The Barreau’s separation of powers argument is without merit, and the Court of Appeal shouldn’t repeat the Superior Court’s mistake by allowing its application to proceed on this shaky basis.

Not Too Late

Back in February, I wrote about the Court of Québec’s judgment in R. v. Cloud, 2014 QCCQ 464, in which Justice Patrick Healy sharply criticized the “victim surcharge” which recent amendments to the Criminal Code require courts to impose in all criminal cases on top of any other sentence. Mr. Cloud, the accused, had not challenged the constitutionality of the surcharge, but Justice Healy was convinced of its arbitrariness and disproportionality, and decided to minimize its effects by imposing a nominal fine on Mr. Cloud, which resulted in the surcharge being calculated as a percentage of the fine (and thus a very small amount) rather than at 100$ per summary conviction offence and 200$ for an indictable offence. Since then, other judges in Québec have followed this approach.

The Crown ― whose lawyers in Ontario have described it as a judicial “insurrection” ― has appealed Mr. Cloud’s sentence and a number of others, seeking to have the full surcharge imposed on the offenders concerned. They, in turn, have asked the Québec Court of Appeal for leave to challenge the constitutionality of the “victim surcharge” on the basis that infringes sections 7 and 12 of the Charter. Last week, in R. v. Cloud, 2014 QCCA 1680, a split judgment from which Chief Justice Nicole Duval Hesler dissented, the Court denied leave, saying that the case did not meet the narrow criteria for raising a new (constitutional) issue for the first time on appeal. (Note that this is a somewhat different situation from that which arose in R. v. Mian, 2014 SCC 54, about which I blogged last week; there it was the Court of Appeal itself which had raised the new issue, whereas here it’s a party that seeks to do so.)

Generally speaking, a party cannot raise on appeal an issue that he or she failed to raise at fist instance. But courts of appeal have a discretionary power to make exceptions to that principle, in particular when a change in the state of the law changes after the trial decision is delivered, for example due to a declaration of unconstitutionality issued in a separate case. The test, as the majority judgment and the dissent agree is that there must be enough evidence in the file to allow the appellate court to rule on the new issue, and the failure to raise it at first instance cannot be the result of a strategic choice by the party that seeks to raise it on appeal. On the other hand, the appellate court must also be satisfied that not considering the new issue will not result in an injustice.

Justice Doyon, writing for himself and Justice Hilton, holds that the criteria for allowing the respondents to raise the issue of the “victim surcharge”‘s constitutionality are not satisfied. For one thing, he finds, the respondents made the deliberate decision not to raise the issue at trial, and must now live with the consequences of their choices; although they say their financial situation prevented them from arguing the constitutional point at first instance, there is no reason to believe that it has now changed. For another, the evidence in the record is not sufficient to dispose of the constitutional issue. The Crown argued that it would want to introduce evidence, including testimony, about the respondents’ financial situation and ability to pay the “victim surcharge,” as well as evidence establishing the benefits of the surcharge for the purposes of defending it under s. 1 of the Charter. Finally, there is no injustice in not allowing the respondents to raise an Ontario decision in which a provincial court judge proprio motu declared the “victim surcharge” unconstitutional.

The Chief Justice disagrees with Justice Doyon’s assessment. (I should note that I have worked for Justice Duval Hesler, as she then was, back when I was in law school, and have kept in touch with her; while I generally think the world of her and am, no doubt, biased, I have not discussed this case with her.) The Chief Justice points to the decision of the Ontario Court of Justice in R. v. Tinker, 2014 ONCJ 208, issued well after Justice Healy’s decision in Cloud, which declared the “victim surcharge” unconstitutional. She argues that there is enough evidence regarding the respondents’ financial situation, and that introducing new evidence regarding s. 1 of the Charter on appeal ― or indeed at the Supreme Court ― is not unheard of. The respondents, in her view, did not expressly renounce constitutional arguments at first instance, and the interests of justice require allowing them to raise them on appeal, because of a principle that “the Court shall not be compelled to apply the mandatory surcharge if its constitutionality is seriously challenged” (par. 49). Tinker, while not equivalent to a Supreme Court decision changing the law, supports the seriousness of the respondents’ constitutional challenge.

I believe that the Chief Justice is right, and indeed that there is more to say in support of her conclusion. For one thing, Tinker is no longer the only case in which the “victim surcharge” was found to be unconstitutional ― there is also R. v. Michael, 2014 ONCJ 360, about which I wrote here. (In fairness, yet another decision, R. v. Javier, 2014 ONCJ 361, which I criticized here, refused to follow Michael and upheld the “surcharge.”) For another, it bears noting that neither Tinker or Michael nor Javier (which, admittedly, did not involve a fully-fledged constitutional challenge) suggest that there is serious, or “voluminous” (as Justice Doyon suggests) evidence in support of the Crown’s claim that the surcharge can be justified under s. 1 of the Charter. Justice Paciocco’s reasons in Michael devote a single paragraph to s. 1. Perhaps he blithely ignored the Crown’s submissions on this point but, considering the rest of these reasons (which I described as “somewhat fastidious”), I find that difficult to believe.

In reality, the Crown’s approach to this application continues its record of persistent hypocrisy in the matter of the “victim surcharge.” In some cases, including in the Cloud appeal, as well as and to journalists, its lawyers argue that judges lack the power to circumvent or minimize the “surcharge” by imposing nominal fines. In others, such as Michael, they argue that they may, and indeed ought to, do so in order to avoid the constitutional issue. In the cases where the constitutionality of the “surcharge” was argued, they seem to have failed to introduce any evidence worth discussing to support their position, yet they rely on the need to introduce such evidence in order to avoid debating the constitutional issue at the Québec Court of Appeal. It’s too bad that the majority of the Court of Appeal fell for this trick. One can only hope that the panel that hears the appeal on the merits will be aware of what is going on, and will call the Crown out on it. For that, at least, it is not yet too late.