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.

No Big Deal?

I wrote recently about a decision of the Ontario Court of Justice, R. v. Michael, 2014 ONCJ 360, which held that the “victim surcharge” imposed in addition to any other punishment on any person found guilty of an offence is, in its current, mandatory, form unconstitutional, because it amounted to a cruel and unusual punishment for those unable to pay it and thereby discharge their debt to society. That decision, I thought, was absolutely right. Shortly thereafter, in R. v. Javier, 2014 ONCJ 361, a different judge of the same court refused to follow Michael, declaring himself unpersuaded by it and finding that the surcharge is constitutional. In my view, however, Michael remains the right decision.

Justice Wadden’s reasons in Javier are a bit schizophrenic. The greater part of them is devoted to arguing that, contrary to what Justice Paciocco found in Michael, it is (almost) always possible to sentence an offender to a fine in addition to jail and probation, so that the option of imposing a nominal fine, which results in the surcharge, calculated as a percentage of the fine imposed, if any, also being nominal and thus constitutionally acceptable. It is always possible, in other words, to get around the rule making the surcharge mandatory ― a move which, we should remember, Crown prosecutors have described as a form of “insurrection.”

Yet towards the end of his (rather brief) reasons Justice Wadden also adds that he is “[f]undamentally … not persuaded that imposition of the victim surcharge, even in the form of hundreds of dollars as contemplated in Michael, would meet the high threshold set for a declaration of invalidity pursuant to s. 51 of the Charter.” (That would be s. 52 of the Constitution Act, 1982, your Lordship.) Justice Wadden explains that

For the truly impecunious, there is no risk of being sent to jail as a result of not paying the surcharge, as a court cannot issue a warrant of committal for non-payment if the offender is truly unable to pay … When considering whether the imposition of the victim surcharge is a punishment “so excessive as to outrage standards of decency” of Canadian society I consider that there are many people in society who are in the unfortunate situation of suffering economic hardship and loss. In the context of the criminal justice system, we frequently see victims of crime who have suffered financial loss in the form of medical costs, lost wages, stolen property or the expense associated with attendance at court. Although the financial stress of paying the victim surcharge may be onerous for some offenders I am not persuaded that it is cruel and unusual punishment that would result in a declaration of the invalidity of this legislation. The effect of such a declaration would be that the victim surcharge could not be imposed on any offender, even those who clearly have the means to pay.

I could be wrong, but to me, it sounds that this is the real reason why Justice Wadden finds the surcharge constitutional ― not the possibility to minimize it by imposing a nominal fine. The surcharge, in his view, is simply no big deal, compared to the hardships of crime victims. Here, at last, is a judge who buys into the federal government’s approach.

Yet Justice Wadden does little to rebut Justice Paciocco’s arguments. In Michael, Justice Paciocco detailed the negative consequences of offenders being indebted for the amount of the victim surcharge, even if they could not be imprisoned for failing to pay it. Collection agencies, to which the government assigns the debt, could still attempt to enforce it; the offenders would need to go to court ― probably without the assistance of counsel ― to show their inability to pay; and most importantly, these offenders’ symbolic debt to society, as well as the pecuniary one, would go unpaid, preventing their rehabilitation. Justice Wadden does not even try to seriously consider the position of such offenders, the consequences for whom go well beyond mere “financial stress.”

Instead, he is concerned with the situation of crime victims. It is a laudable concern but, however much the current government might wish the contrary, one that cannot displace the judge’s duty fairly to consider the rights of the offender who stands before him. Indeed, it is worth highlighting that the offender before Justice Wadden was being sentenced for a paradigmatic victimless crime, the simple possession of a prohibited drug. Furthermore, as I have argued here,

to the extent that offenders are, on average, poorer than the victims of crime … the “surcharge” effectively operates as a wealth transfer from the poor to the better-off.


even by the usual standards of government redistribution from the poor to the well-off, a particularly unjust measure. … [T]he surcharge is arbitrary because the amount … imposed on an offender bears no relation to the “quotient of accountability” that ought to be imposed on them. It varies only according the number of counts of which a person is found guilty, the imposition or not of a fine, and the status of the offence as an indictable one or one punished by summary conviction. A person found guilty of two counts of assault will pay more than one guilty of a single count of first-degree murder. How that is supposed to foster accountability for crimes, or give any sort of relief to crime victims is beyond any conceivable rational explanation.

Finally, Justice Wadden is surely wrong to say that finding the current surcharge provisions unconstitutional would mean that the surcharge could not even be imposed on those who are actually able to pay it. Admittedly, that would be the consequence of Justice Paciocco’s ruling, and perhaps he ought to have given more consideration to the remedy he granted. Instead of simply invalidating the surcharge provisions, it should would, I think, be possible to read in a judicial discretion not to impose the surcharge on offenders unable to pay it (which existed prior to recent amendments to the Criminal Code). It seems a safe bet that Parliament would have preferred imposing a surcharge with such a discretionary safety valve to not imposing one at all. In any case, Parliament remains free to enact such provisions even if the courts simply invalidate the existing ones.

Contrary to what Justice Wadden suggests, it is not true that the “victim surcharge” is no big deal. But perhaps his poorly reasoned and unpersuasive decision is. One can hope that it is Justice Paciocco’s cogent ruling in Michael that will be followed in future cases.

H/t: Elizabeth LeReverend, via CanLII Connects.


Apologies for my prolonged absence. I’m back. (I think.) And a pretty good place to start is a recent decision by Justice David Paciocco of the Ontario Court of Justice striking down the “victim surcharge” imposed on persons convicted of any offence, regardless of the nature of the offence in question and ― since the enactment of amendments to the Criminal Code as part of the federal government’s “tough on crime” agenda ― of the offender’s ability to pay. The ruling, R. v. Michael, is available here thanks to Michael Spratt, who also has some thoughts on it on his blog.

Justice Paciocco had convicted Mr. Michael of a total of nine summary conviction offences, ranging from some breach of previously-imposed conditions to (fairly minor) assaults, which meant that he ought to have imposed a 900$ surcharge in addition to whatever combination of jail time and probation was a fit sentence under the principles set out in the Criminal Code. But Mr. Michael is alcoholic and destitute, splits time between living on the street or in shelters and staying with (equally destitute and troubled) relatives, and his income consists of welfare payments of 250$ a month. He has, Justice Paciocco found, no means to pay the 900$ at present, and no reasonable prospects for doing so in the foreseeable future, if ever. The 900$ is not just all he has ― it is much more than he ever had or likely ever will have. Requiring him to pay the “surcharge,” Justice Paciocco holds, amounts to “cruel and unusual punishment” prohibited by s. 12 of the Canadian Charter of Rights and Freedoms.

The first issue he had to address in arriving to this conclusion was whether the “surcharge” was a form of punishment at all. Justice Paciocco rejected the Crown’s arguments to the effect that it was not. The “surcharge,” he found, “functions in substance like a fine” (par. 16), which is a paradigmatic form of punishment. Furthermore, its “proclaimed purpose, holding offenders to account, falls squarely within the purposes of sentencing” recognized by the Criminal Code and the Supreme Court’s jurisprudence (par. 10). However different it is from the usual forms of punishment under the Criminal Code, the “surcharge” is a punishment too.

The test to determine whether a punishment is “cruel and unusual” within the meaning of the s. 12 of the Charter is whether it is “so excessive as to outrage standards of decency” ― a standard “intended to reflect deference to Parliament’s legislative authority” (par. 18). In assessing whether the “surcharge” meets this test, one question is whether one ought to look at the amount imposed for each offence or at the amount imposed on an offender. Pointing to the principle of totality, which requires combined sentences for multiple offences not to become disproportionate to an offender’s guilt, Justice Paciocco chose the latter course.

In his view, the effect of imposing the equivalent of a 900$ fine on a destitute person not likely to be able to pay it is grossly disproportionate to the penological effects at which it aims. The costs of the “surcharge” are onerous. Even if the Crown does not attempt to collect the “surcharge” (and it is not clear that it, or more likely collection agencies to which it would assign the right to do so, would not), such a person could be prosecuted for failure to pay and would have to argue that the failure is due to inability rather than unwillingness. Perhaps most importantly for Justice Paciocco, an unpaid “surcharge” is an unpaid debt to society; so long as it is due, even if it cannot be collected, an offender cannot be fully reconciled to society. Underscoring the point, the time required for him or her to apply for a “record suspension” (formerly a pardon) does not begin to run until the “surcharge” imposed is paid in full. Giving such a person more time to pay the surcharge would do nothing to solve all these problems.

The “surcharge”‘s benefits, by contrast, are elusive. Even accepting that it serves to provide additional “accountability,” it is disconnected from the usual principles of sentencing, being entirely unconnected to the circumstances of the offender or the offence. Parliament chose to make the “surcharge” mandatory and remove the judges’ discretion not to impose it on offenders to whom it would pose “undue hardship” because this discretion was, in its view, too often exercised. But there would have been any number of ways to limit the number of cases in which the “surcharge” was waved, by making the criteria for such a waver more precise, without altogether removing the discretion and imposing the “surcharge” on those genuinely unable to pay it.

The Crown’s final gambit in its defence of the “surcharge” was to argue that Justice Paciocco could avoid imposing it by adding a nominal fine to Mr. Michael’s sentence. When a fine is imposed, the surcharge must amount to 30% of the fine; if the fine is nominal, so is the surcharge, and disproportionality is avoided. Justice Paciocco himself had taken that course in other cases, as had other judges (including Justice Healy of the Court of Québec in R. v. Cloud, 2014 QCCQ 464, which I discussed here). But under binding Ontario precedent, such this manoeuvre is not open in all cases. And because the unconstitutional effects of the “surcharge” cannot always be avoided in this way, it is itself contrary to s. 12 of the Charter. Nor can it be saved by the Charter’s s. 1. In Justice Paciocco’s view, a violation of s. 12 never can be, because it entails disproportionality, whereas s. 1 is a proportionality test.

This seems quite right. Justice Paciocco’s opinion is persuasive if a bit fastidious. And Mr. Spratt, in the post linked to above, is right to call out the Crown for its hypocrisy in trying to save the “surcharge” by inviting the court to avoid it in move which in other cases it describes as a form of “insurrection.” But, as Mr. Spratt notes, the hypocrisy only underscores the senselessness of the “surcharge” as it now exists. I have argued elsewhere that the surcharge is also violation of property rights (which unfortunately are not protected by the Charter), and an especially odious form of redistribution from the poor to the well-off. But it is quite fair to describe it as vicious and cruel. Unconstitutionally so.

Up We Go

Just a quick post to note that Justice Pierre Dalphond of the Québec Court of Appeal has granted the federal government’s application for leave to appeal the Superior Court’s decision granting the Québec Bar standing to challenge, wholesale, the mandatory minimum sentencing provisions enacted by Parliament as part of an omnibus criminal law statute, the Safe Streets and Communities Act, S.C. 2012 c. 1. Justice Dalphond’s ruling is very brief, stating only that allowing the appeal to go forward is “in the interests of the justice system.”

I blogged about the Superior Court’s decision here, arguing that it was not a persuasive one. In my original post on the Bar’s challenge, I expected it to be dismissed for lack of standing; perhaps the Court of Appeal will yet prove me right. For the reasons I elaborated in my previous posts, I believe that the Bar’s recourse is inappropriate and inconsistent with the nature of judicial review in Canada. The hearing of the appeal is set for December 4.

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.

Petty Punishment, SCC Edition

Rather lost in all the noise generated by the Supreme Court’s decision in l’Affaire Nadon is the Court’s decision, delivered last Thursday, in Canada (Attorney General) v. Whaling, 2014 SCC 20, which considered, and found unconstitutional, the retroactive application of the abolition of accelerated parole review by one of the recent “tough on crime” laws. I would like to come back to that decision.

The case was an appeal from a decision by the BC Court of Appeal, about which I blogged here. As I wrote then,

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

The Court of Appeal found that a change of the terms under which an already-sentenced prisoner would be eligible for parole requiring him or her to spend more time in prison was, indeed, a form of punishment, and thus a violation of the Charter, which in its view the government failed to justify under s. 1. The Supreme Court, in a unanimous judgment by Justice Wagner, agreed.

The government argued that the abolition of accelerated parole did not have punitive aims; its purposes were, rather, rehabilitation of the offenders, as well public safety and confidence in the judicial system. It also contended that par. 11(h) of the Charter only applied to cases where a person was more than once subject of proceedings of a criminal nature arising out the same facts.

With respect to the latter argument, Justice Wagner points out that

[t]he disjunctive language of the words “tried or punished” clearly indicates that s. 11(h)’s protection against additional punishment is independent of its protection against being tried again (par. 37; emphasis in the original).

Furthermore, says Justice Wagner, it stands to reason that if the Charter protects one against being punished again for the same offence as a result of the application of due process of law, it must protect against the greater evil of being punished again without due process.

Justice Wagner identifies three types of situations to which par. 11(h) of Charter applies:

(a)   a [new] proceeding that is criminal or quasi-criminal in nature (being “tried . . . again”);

(b)   an additional sanction or consequence that … is similar in nature to the types of sanctions available under the Criminal Code and is imposed in furtherance of the purpose and principles of sentencing; and

(c)   retrospective changes to the conditions of the original sanction which have the effect of adding to the offender’s punishment (being “punished . . . again”).

A change only to the conditions under which a sentence is served will not come within the scope of (c), but a change that results in the sentencing actually lasting longer will. Importantly, this includes changes that result in a person serving a longer part of his or her sentence in prison, even if the overall length of the sentence remains the same. The abolition of accelerated parole for those who, at the time of their sentencing, were entitled to it adds to their punishment.

Although Justice Wagner refuses, “[d]espite some troubling passages from Hansard that are suggestive of [a punitive and therefore] unconstitutional purpose,” to conclude that the object of the retroactive abolition of accelerated parole review was not merely the uniform application of the new sentencing regime to all offenders, as the government contended. However, a law can be rendered unconstitutional by its effects as well as by its purpose, which is what happens here:

[t]he imposition of a delay in parole eligibility in this case is analogous to the imposition of delayed parole eligibility by a judge under the Criminal Code as part of the sentence (par. 72),

which is a form of punishment. Since the is done retroactively for those who were already punished for their offences, par. 11(h) of the Charter is infringed.

Justice Wagner then turns, briefly, to s. 1 of the Charter. Justice Wagner finds the objectives of effective and uniform parole administration, and the support of public confidence in the justice system which is supposed to result form it, pressing and substantial. He also finds that the retroactive abolition of accelerated parole review is rationally connected to these objectives. It fails, however, at the “minimal impairment” stage, because

[t]he Crown has produced no evidence to show why the alternative of a prospective repeal, which would have been compatible with the respondents’ constitutional rights, would have significantly undermined its objectives (par. 80).

Although Justice Wagner’s s. 1 analysis seems a little quick, almost an afterthought, I think that this he and the Court get the outcome right. As I wrote when commenting on the Court of Appeal decision

[w]hatever the reasons for abolishing accelerated parole for the future, imposing tougher punishment retroactively seems merely petty.

 UPDATE: Michael Spratt delves into the detail of how Parliament and the government miserably failed ― and indeed refused to ― consider the constitutionality of the retroactive application of the abolition of accelerated parole. It is an instructive as it is sad, particularly for those who like to believe that legislators take rights seriously.

Greed Is Not Good

Many bad things have been said about the “victim surcharge” which the Criminal Code requires people found guilty of an offence to pay, and which recent amendments have made mandatory, depriving judges of any discretion to waive it, regardless of whether it represented a disproportionate punishment for a minor offence or would cause great hardship to a destitute person. In a well-publicized recent judgment in R. v. Cloud, 2014 QCCQ 464, Justice Healy reviews and endorses a number of criticisms. “As applicable to many … offenders, the surcharge” ― really, he points out, just a fine ―

would disturb reasonable and informed people because it is disproportionate ― having regard to the quantum, the inflexibility of its terms and the inherent arbitrariness in distinguishing between cases where a fine is or is not imposed or cases that proceed by summary-conviction procedure or indictment.  It is a blunt instrument that is far too blunt to achieve any valid penal purpose. (Par. 18; footnote omitted.)

Although it is purportedly meant to make offenders accountable to the people who suffer from their misdeeds,

[t]he surcharge is … contingent on the presence or absence of a fine or on the classification of offences [into indictable and summary-conviction offences]. This would appear to be arbitrary as a measure of the quotient of accountability of offenders. It is not apparent that a reliable and proportionate quotient of accountability can be derived from a percentage of a fine. Even less is it apparent that one-half, or double, the quotient of accountability can be assured by the classification of offences. This is obvious in the case of hybrid offences that require an election by the prosecution [to proceed by indictment or by way of summary conviction]. (Par. 26)

And although no constitutional challenge was before him, Justice Healy points out that the constitutionality of the surcharge might be questioned too, whether because it amounts in some cases to cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms, or because it contradicts the principle of individualization and proportionality in sentencing, which might be protected by s. 7 of the Charter.

On that last point, note that s. 7, which protects “the right to life, liberty and security of the person,” comes into play in a round-about way. The surcharge itself does not deprive anyone of life or liberty, and it is doubtful whether, even the case of an indigent person, the courts would find that a fine can amount to deprivation of the security of the person (though that’s certainly not impossible). Rather, s. 7 becomes involved because the non-payment of the surcharge can lead to imprisonment, and thus a deprivation of liberty.

Which brings me to the point I want to make in this post. One criticism of the “surcharge” that is missing from Justice Healy’s opinion and, so far as I can tell, from other public commentary too is that it is an unjustified deprivation of property. The right to property, of course, is conspicuously and deliberately missing from s. 7 of the Charter. I think that the “surcharge” demonstrates that its exclusion from the constitution is unfortunate, and that, contrary to conventional wisdom, it hurts the poor rather than the well-off.

That the “surcharge” is a government taking is quite clear. Although the Crown tried to argue in Cloud that, because the “surcharge”  finances a fund that helps crime victims, it is a form of restitution, Justice Healy’s explanation of the reasons for which this argument fails is unassailable. In addition to relying on statutory language, Justice Healy points out that

[t]he surcharge is not compensation for actual loss to an identified person or entity and it has nothing to do with any notion of restitutio in integrum as that concept is legally understood.  … Further, if the alternative to non-payment of the surcharge is participation in a fine-option programme or (where there is no such programme) imprisonment, it is nonsense to describe these mechanisms as a function of restitution. (Par. 40.)

I would only add that it is equally nonsensical to describe the “surcharge” as “restitution” when it is imposed on people sentenced for victim-less crimes, such as possession of drugs or firearms.

It is equally clear from Justice Healy’s reasons in Cloud that the “surcharge” hits the poorest and most marginalized members of society especially hard, both because they are more likely to get into trouble with the law and because they can least afford to pay it. As a general matter, if it is the case that offenders are, on average, poorer than the victims of crime (I do not know the numbers, but this seems a plausible assumption; Mr. Cloud’s case would certainly support it), then the “surcharge” effectively operates as a wealth transfer from the poor to the better-off. Of course, it is not the only government programme that operates in this way, and I suppose should not be unconstitutional for that reason alone. 

But it is, even by the usual standards of government redistribution from the poor to the well-off, a particularly unjust measure. As Justice Healy points out in a passage quoted above, the surcharge is arbitrary because the amount of the “surcharge” imposed on an offender bears no relation to the “quotient of accountability” that ought to be imposed on them. It varies only according the number of counts of which a person is found guilty, the imposition or not of a fine, and the status of the offence as an indictable one or one punished by summary conviction. A person found guilty of two counts of assault will pay more than one guilty of a single count of first-degree murder. How that is supposed to foster accountability for crimes, or give any sort of relief to crime victims is beyond any conceivable rational explanation.

In its recent decision in Canada (Attorney General) v. Bedford2013 SCC 72 the unanimous Supreme Court explained that as a principle of fundamental justice enshrined in s. 7 of the Charter, non-arbitrariness is concerned with the existence of

a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. (Par. 111)

The “victim surcharge” is a flagrant violation of this principle. But, because s. 7 does not protect property rights, it can only be brought to bear on this iniquity through the back door. This is too bad. We accept that the government may not be cruel, or devious, or tyrannical. Why is it permissible for it to be greedy?

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.