Petty Punishment

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

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

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

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

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

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

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

A Strike against Three Strikes

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

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

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

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

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

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

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

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

Minus the Mandatory Minimum

Last week, another mandatory minimum sentence introduced as part of the federal government’s “tough-on-crime” agenda was declared unconstitutional, this time by the Ontario Court of Justice. The provision at issue in R. v. Lewis, 2012 ONCJ 413, is par. 99(2)(a) of the Criminal Code, and imposes a mandatory minimum of three-years’ imprisonment for a first-time firearms trafficking offence.

The accused had sold some cocaine to an undercover police officer posing as a low-level dealer, and offered to sell him a handgun. The judge found, however, that that was a “hollow offer” never intended to be followed through on. The accused never had a gun or access to one―he only boasted of his ability to procure one in order to keep his new client’s business. Still, offering to sell a firearm is enough to bring one within the scope of the trafficking provision of the Criminal Code. After he was arrested and charged, he pled guilty to three counts of trafficking in cocaine, but challenged the charge of weapons-trafficking, arguing that the mandatory minimum sentence on it was unconstitutional because contrary to the prohibition on “cruel and unusual … punishment” in s. 12 of the Charter.

Adopting the test developed by the Superior Court in cases dealing with another mandatory minimum provision, justice Bellefontaine held that he had to decide, first, whether the sentence he would impose absent the mandatory minimum would in fact be less than that minimum, and second, if so, whether it was contrary to s. 12 and could not be saved by s. 1 of the Charter. To the first question, the judge answered that, although the accused’s blameworthiness for this offence was ” at the very low end of the spectrum of offences” since he never actually meant to sell a firearm, in view of his rather lengthy history of criminality, some of it violent, a one-year sentence would have been appropriate. That, of course, is well short of the statutory minimum.

The question of that minimum’s constitutionality must then be dealt with. The test set out by the Supreme Court “is whether [the sentence] is so excessive or grossly disproportionate as to outrage standards of decency.” This test must be applied both to the actual circumstances of the accused and to a reasonable hypothetical case; if the sentence fails it in either instance, it is unconstitutional. As applied to Mr. Lewis, the judge finds that the statutory minimum is disproportionate, but not so grossly as to be unconstitutional, given his “significant criminal antecedents and entrenched devotion to a criminal lifestyle.” The outcome is different, however, for a hypothetical accused in whose case these aggravating circumstances would not be present and who would be, say, trafficking in marijuana rather than cocaine. In that case, says justice Bellefontaine, a three year sentence would be outrageously disproportionate:

[w]hile the words “one year” or “two years” or “three years” slide off the tongue equally easily, they represent large magnitudes of difference to a youthful first offender serving the sentence.  A three year sentence will necessarily be served in the harsh environment of a federal penitentiary with generally older and many hardened violent criminals.  Such a length of sentence and the severe environment it would be served in would effectively eliminate rehabilitation as a sentencing objective when it should be the primary purpose of sentencing for a youthful first offender.  That length of sentence would not be required for specific deterrence.  Such a grossly disproportionate sentence could not be justified on the basis of general deterrence or the protection of the public.

The judge then proceeds to the s. 1 analysis. After referring to another recent mandatory-minimum case, he concludes that

Parliament has imposed a minimum penalty that addresses a worse case offence but which grossly over penalizes the many lesser ways that the same crime can be committed.  The minimum three year sentence does not address the different degrees of moral blame worthiness associated with the different circumstances under which the offence can be committed and accordingly the penalty does not meet the minimal impairment and proportionality tests in R. v. Oakes, [1986] 1 S.C.R. 103 and cannot be justified under Section 1.

The judge briefly considers reading down the mandatory minimum to apply to actual trafficking cases, as opposed to those, such as the one at bar, of offers to traffic, but finally declines to do so. Accordingly, he declares the mandatory minimum provision unconstitutional.

James Morton, a former president of the Ontario Bar Association, argues that this is the wrong decision. “[W]ould reasonable people really be outraged by a fixed minimum sentence of three years for firearms trafficking? Is such a punishment truly grossly excessive? … The gun trafficking minimum sentence is one of those areas where the courts should have exercised more deference to parliament.” I don’t think so. If the constitution invalidates excessive sentences, just like it invalidates, say, laws infringing on freedom of speech, or federal laws invading provincial jurisdiction, then why should courts be more deferential to allegedly unconstitutionally harsh laws than to other potentially unconstitutional ones? What Mr. Morton’s comments do suggest is that it is problematic for courts to make popular feeling, of which they cannot be very good judges, a criterion of constitutionality. I doubt that courts actually take such references to popular feeling very seriously. But if so, they should drop the pretense.