Section 12 and Declining Public Confidence in the Justice System
Gordon Lee, 3L
In January 2023, the Supreme Court of Canada released its decision in R v Hills, 2023 SCC 2 (CanLII) (Hills), striking down s. 244.2(3)(b) of the Criminal Code. S. 244.2(3)(b) imposed a mandatory minimum sentence of four years’ imprisonment for intentionally discharging a firearm into a crowded or populated area.
While this decision attracted significant public attention, there is one aspect of the decision which has attracted relatively little attention. The Court claimed that the kind of sentence imposed by s. 244.2(3)(b) “would “shock the conscience” of Canadians” (Hills at paras 5& 163) and would “outrage Canadians” (Hills at para 169). The Court provided no evidence to support these claims.
The use of evidence-free claims about public support in Hills are representative of two larger problems with the Court’s s. 12 jurisprudence. First, when the Court uses bare assertions that are unsupported by evidence to support its decisions, it undermines the Court’s credibility. Treating the personal opinions of justices as statements of truth without any supporting evidence for their alleged veracity is an example of poor legal reasoning, present in Hills and in much of the Court’s recent s. 12 jurisprudence.
Second, the Court’s s. 12 jurisprudence is eroding public confidence in the justice system. While Chief Justice Wagner has made clear his desire to improve public confidence in the justice system, there is a widening gulf between the Court’s views and Canadians’ views on sentencing. Although the Court often claims, without evidence, widespread public support for its lenient approach to sentencing, it ignores actual evidence that Canadians have long believed that Canada’s sentencing regime is too lenient, and that Canadians have little confidence in the justice system. This blog post presents evidence that Canadians have a very different view of the justice system and of criminal sentencing than the Supreme Court, and that the Supreme Court’s s. 12 jurisprudence is worsening public confidence in the justice system.
Bare Assertions and Declining Confidence in the Justice System
Over many years in different contexts, the Court has repeatedly emphasized that it does not take kindly to litigants who bring claims absent supporting evidence – what it calls “bare assertions” or “mere assertions.” [1] However, while the Court disapproves of litigants who advance evidence-free claims or “bare assertions,” it often has no issue with using evidence-free assertions in its s. 12 decisions about the subjective feelings of Canadians. Although the Court is not directly accountable to Canadians, unlike legislatures, and although it does not undertake fact-finding exercises to survey Canadians about their opinions on certain issues, it nonetheless makes claims about those very opinions. For example:
In R v Bissonnette, 2022 SCC 23 (CanLII) (Bissonnette), the Court struck down a law which made it possible to sentence mass murderers to life without a chance of parole. The Court stated three times that preventing mass murderers from applying for parole would “bring the administration of justice into disrepute” (Bissonnette at paras 7, 94, 140).
In R v Boudreault, 2018 SCC 58 (CanLII) (Boudreault), the Court struck down mandatory victim surcharges, claiming that requiring convicted criminals to financially compensate their victims “is what most Canadians would call an abhorrent and intolerable punishment.” (Boudreault at para 110).
In R v Lloyd, 2016 SCC 13 (CanLII) (Lloyd), the Court struck down a mandatory minimum sentence of one year for a drug-trafficking offence, claiming that “most Canadians would be shocked” by such a sentence (Lloyd at paras 32).
In R v Brown, 2022 SCC 18 (CanLII), the Court struck down s. 33. 1 of the Criminal Code and restored the defence of self-induced extreme intoxication. In Brown, the Court claimed that “s. 33.1 unwittingly serves to compromise the full promise of the confidence [in the justice system] that Parliament designed it to promote” (Brown at para 149). In R v Daviault, [1994] 3 SCR 63 (CanLII), a similar law was struck down only for Parliament to re-enact a prohibition on the defence, suggesting strong support for the law.
In Law Society of British Columbia v Trinity Western University, 2018 SCC 32 (CanLII), the Court upheld the law society’s refusal to recognize a Christian law school on the basis of its faith-based covenant, claiming that preventing Trinity Western from opening a law school “maintains public confidence in the legal profession” (Trinity Western at para 103).
In R v Jordan, 2016 SCC 27 (CanLII), the Court’s decision to establish hard ceilings on trial timelines resulted in hundreds of criminal cases being dropped across Canada, freeing many accused of violent crimes, including offenders where reliable evidence had been collected. The Court stated that its hard ceiling would “build public confidence in the administration of justice” (Jordan at para 55).
In R v Safarzadeh‑Markhali, 2016 SCC 14 (CanLII), the Court struck down a law ending enhanced credit for time spent in pre‑sentence custody if an offender was denied bail for a prior conviction. The Court agreed with the Court of Appeal that the law “undermines public confidence in the justice system” (Safarzadeh‑Markhali at paras 17 and 65).
In Canada (Attorney General) v Whaling, 2014 SCC 20 (CanLII), the Court struck down the retrospective abolition of early parole, claiming that abolishing early parole retrospectively “does great damage to that confidence [in the justice system]” (Whaling at para 80).
In R v Malmo-Levine; R v Caine, 2003 SCC 74 (CanLII), the Court held that “for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate” (Malmo-Levine at para 113, emphasis added).
In R v Ndhlovu, 2022 SCC 38 (CanLII), the Court used a principle of fundamental justice called “overbreadth” to strike the mandatory registration of convicted sex offenders. The Court has never provided evidence that there is significant societal consensus that overbreadth should be a principle of fundamental justice, nor did it provide evidence that there was significant societal consensus against mandatory registration of sex offenders.
In each of the cases noted above, the Court claimed that Canadians supported its decision. In several cases, the Court made a numerical claim, asserting it had the support of most Canadians. Yet, in each case, the Court did not produce a single piece of evidence to support any of its assertions about public support. For purposes of brevity, this post focuses on the Court’s s. 12 jurisprudence, but it should be noted that the Court has claimed to have public support without providing any evidence in multiple landmark Charter cases.
Contrary to the Court’s assertions of public support, available evidence points to the opposite conclusion. For example, the impugned law in Bissonnette was overwhelmingly popular, receiving unanimous support in Parliament. Bill C-48 was so popular that every MP, from every party, agreed to pass it without a recorded vote, which is incredibly rare for an amendment to the Criminal Code. Additionally, while Bill C-48 was enacted under a Conservative government, one commentator correctly noted that “Justin Trudeau’s Liberal government had asked the Supreme Court to uphold the law. This wasn’t partisan.” Similarly, the impugned law in Boudreault received very strong parliamentary support (251 votes for the law, 32 against).
In addition to the actions of Canadians’ elected representatives, public opinion polling points to the same conclusion that there is strong public support for stronger sentencing laws. While some may argue that polls are not reliable gauges of public opinion, previous Supreme Court justices like Beverley McLachlin and Rosalie Abella have cited polling data to support their claims of public support. [2] Accordingly, if public polling is reliable when polls show Canadians agreeing with the Court, public opinion polling should also be trusted when polls show Canadians disagreeing with the Court.
More than twenty years ago, a comprehensive 2001 review of public opinion polls conducted by the Department of Justice concluded that “Canadians are of the opinion that sentences handed down by the courts are not severe enough” and that the “majority of Canadians would like to see the parole system made stricter.” [3] In 2008, Grant Huscroft (now a justice of the Ontario Court of Appeal) conducted a review of public polling and found the same conclusion. [4]
Two decades later, polls show that Canadians’ opinions on the justice system continue to be negative [5]. In fact, some polls suggest that more Canadians have a negative view of the justice system and the Supreme Court today than in the past. For example, the Angus Reid Institute, a reputed pollster, found that in the three years between 2016 and 2019, Canadians’ confidence in the courts continued to decrease, with most respondents in ten provinces expressing a lack of confidence in the Supreme Court. In recent years, different polls conducted at different times by different pollsters have shown the same conclusion: Canadians believe that courts are too lenient with convicted criminals, and Canadians as a whole, do not have much confidence in the justice system.
Unreasonable Hypotheticals
Perhaps the strongest argument the Court and its defenders can make regarding public opinion and sentencing laws is that in several decisions, like Hills, its assertions about public support relate to specific hypothetical scenarios. In Hills, the Court first stated that the mandatory minimum sentence would not be disproportionate for Mr. Hills. Normally, this would be enough to dispose of a constitutional challenge.
However, the Court then moved on to its “reasonable hypothetical,” which it described as “a young person firing a BB gun or a paintball gun at a house” (Hills at para 154). Based on this hypothetical, the Court claimed that “it would outrage Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home” and declaring the mandatory minimum sentence as “cruel and unusual punishment,” and therefore unconstitutional (Hills at para 169). There are two issues with this argument.
First, this is still a baseless assertion, as the Court does not provide any evidence of Canadians’ opinions on this issue. Second, the fictional scenarios the Court uses to assess mandatory minimum sentences, which it calls “reasonable hypotheticals,” are themselves unreasonable because they have never occurred in real life, nor are they likely ever to in the future.
While the Court called its paintball hypothetical “reasonably foreseeable” (Hills at para 5), the Court could not point to a single instance of anyone being arrested, let alone convicted and sentenced under the law at issue in the case, for firing a paintball gun at a shed.
In her dissent, Justice Côté noted that this hypothetical scenario “has not resulted in a conviction under s. 244.2(1)(a) — nor would it, on my interpretation of the offence, unless the accused had turned his mind to the fact that discharging the firearm would jeopardize the lives or safety of others. The hypothetical is “more imaginary than real” and is not a sound basis on which to nullify Parliament’s considered response to a serious and complex issue” (Hills at para 223).
Similarly, in R v Nur, 2015 SCC 15 (CanLII) (Nur) and in Lloyd, the Court concluded that the mandatory minimum sentences at issue were not grossly disproportionate to either of the two convicted offenders (Nur at para 48, Lloyd at para 25) but that it ought to strike the laws on the basis of hypothetical scenarios. Just as in Hills, the Court in both Nur and Lloyd did not provide a single instance of their supposedly reasonable hypothetical occurring in reality.
Using far-fetched hypotheticals to strike down otherwise valid legislation is inconsistent with Court jurisprudence, including cases cited by the Court in Hills. In 1990, the Supreme Court held that “[i]t will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter” (Steele v Mountain Institution, [1990] 2 SCR 1385 (CanLII) (Steele) at 1417).
The year after Steele was decided, the Court held that “s. 12 will not easily be infringed,” holding that courts are “not to hold Parliament to a standard so exacting, at least in the context of s. 12, as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender” (R v Goltz, [1991] 3 SCR 485 (CanLII) at 501, citing R v Lyons, [1987] 2 SCR 309 (CanLII) at para 56). The Court has also held that “reasonable hypotheticals could not be “far-fetched or marginally imaginable cases”. They cannot be “remote or extreme examples” (R v Morrisey, 2000 SCC 39 (CanLII) at para 30.
Unfortunately, the “reasonable hypothetical” test the Court uses in Hills is neither stringent nor demanding. While the Court in Hills set out an elaborate framework to govern such hypotheticals, demanding that “they must be reasonable in the sense of being reasonably foreseeable and realistic” (Hills at para 51), the reality is that this framework led to the paintball hypothetical. A hypothetical that is unreasonable because it is unimaginable that it could lead to an arrest, let alone a conviction or a prison sentence.
Additionally, the use of unrealistic hypotheticals has serious consequences for judicial restraint. Judicial restraint is necessary because of the tension between the power the Supreme Court can wield and the importance of allowing Canadians in a free and democratic society to actually govern themselves through democratic rule, without unnecessary intervention by courts. William Brennan, the late American jurist, famously told an interviewer, here, “Five votes. Five votes can do anything around here,” illustrating the incredible ability of the judiciary to overturn duly enacted legislation.
The same holds true in Canada, where five unelected judges can throw out duly enacted legislation even if it was supported by every single elected member of Parliament, as in Bissonnette. If Canadians are to be able to govern themselves effectively, unelected judges should not strike down every law which does not accord with their personal political and moral views. The bar for declaring a law to be unconstitutional must be high.
Unfortunately, allowing courts to strike down otherwise valid sentencing laws on the basis of unrealistic hypotheticals has set this bar very low. Since Nur was decided in 2015, courts across Canada have struck down mandatory minimum sentencing laws over 100 times.
Furthermore, the Court does not consider prosecutorial discretion as a relevant factor in determining a law’s constitutionality (Nur at paras 91-92). Consequently, the “reasonable hypothetical” is an incredibly low bar that allows judges to strike down valid sentencing laws.
The Court’s post-Nur approach to developing “reasonable hypotheticals” has been criticized. When Hills was before the court, Justice Wakeling of the Alberta Court of Appeal correctly noted that unlike the Supreme Court of Canada, “[t]he United States Supreme Court bases its decisions on real-world scenarios – not hypotheticals so unlikely to occur that no one should make important decisions in reliance on them” (R v Hills, 2020 ABCA 263 (CanLII) at para 140), a particularly noteworthy point in light of the Supreme Court’s holding that the Eighth Amendment of the U.S. Constitution, which protects against “cruel and unusual punishments,” is “highly relevant” to understanding and interpreting s. 12 of the Charter (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 (CanLII) at para 41).
Unfortunately, the Supreme Court did not address the substance of Justice Wakeling’s opinion, choosing only to say that his opinion was “counter to the jurisprudence of this Court and lacks merit” (Hills at para 67).
To be clear, the issue is not that the Court considers hypothetical situations in its decision-making. The issue is when the Court uses hypotheticals that are very unlikely to happen in practice as a basis for striking down an otherwise constitutional law, as was the case in Hills.
For example, under the Supreme Court’s approach to assessing sentencing laws under s. 12, there is a clear path to invalidating the absolute liability offence of failing to stop at a stop sign. First, a judge could imagine a mother who is driving her sick son to the hospital. As she approaches an intersection with a stop sign, the mother sees that there is no traffic in any direction. She then goes through the intersection without stopping at the stop sign, in violation of the law.
If this ever happened in real life, the mother would likely not be charged, let alone convicted. But because the Supreme Court has said that prosecutorial discretion cannot protect a sentencing law from a s. 12 challenge, the absolute liability offence for failing to stop at a stop sign, using this hypothetical scenario, would be vulnerable to a s. 12 challenge. This would make a mockery of s. 12’s prohibition of “cruel and unusual punishment.”
Who Interprets the Charter?
Despite its repeated assertions that Canadians are outraged by the minimum sentence at issue in Hills, the Court tries to hedge by asserting that “[w]hether a sentence “outrage[s] standards of decency”, is abhorrent or intolerable, “shock[s] the conscience” or undermines human dignity is a normative question…[that] does not turn on a court’s opinion of whether a majority of Canadians support the penalty. Rather, the views of Canadian society on the appropriate punishment must be assessed through the values and objectives that underlie our sentencing and Charter jurisprudence” (Hills at para 110).
This statement by the Court seems to suggest that public support of a sentencing law is not dispositive of whether that sentence would outrage standards of decency or shock the conscience. Instead, the Court suggests that its interpretation of the Charter is what will determine whether a sentence should be struck down under s. 12.
There are several issues with this reasoning. First, if public opinion is as unimportant as the Court suggests, it should stop making claims about public support in its opinions. If a decision to strike down a law under s. 12 “does not turn on a court’s opinion of whether a majority of Canadians support the penalty,” there is no reason for the Court to discuss public opinion in its decisions.
Second, the Court’s position that “the views of Canadian society on the appropriate punishment must be assessed through the values and objectives that underlie our sentencing and Charter jurisprudence” has worrying consequences for democratic rule in Canada. Charter provisions are often laid out in broad, open-ended language, capable of taking on idiosyncratic meaning. For example, Parliament and the Court have had differing views on what constitutes “cruel and unusual punishment,” as reflected in the aforementioned s. 12 cases.
However, the Court’s position that “the views of Canadian society…must be assessed through the values and objectives that underlie our sentencing and Charter jurisprudence” essentially equates the Court’s own jurisprudence with the views of Canadian society. As mentioned throughout this piece, this assertion is not supported by evidence.
Ultimately, there exists today no obvious or objective interpretation of what types of laws constitute cruel and punishment in Canadian society. When the Court declares that a particular law constitutes “cruel and unusual punishment,” it is expressing a subjective opinion, not stating an indisputable fact. Having issued over one hundred decisions in less than a decade striking down various mandatory minimum sentencing laws, the ability of Canadians to shape this country’s justice system has been severely curtailed. Since Nur, the Supreme Court and lower courts following its guidance have aggressively struck down numerous mandatory minimum sentencing laws, often in the name of preserving Canadians’ confidence in the justice system. Unfortunately, many judges seem unaware that the majority of Canadians have starkly different views of criminal sentencing, and that striking down popular sentencing laws risks endangering public confidence in the justice system further.
Stringency, Section 12, and Restoring Confidence in the Justice System
Last year, Justice Elena Kagan of the U.S. Supreme Court warned that “if over time the court loses all connection with the public and with public sentiment, that's a dangerous thing for a democracy.” If Kagan’s words are true, the Supreme Court of Canada is treading down a dangerous path.
Today, the Court has lost connection with the Canadian public and public sentiment on the issue of sentencing. Unless the Court returns to a “properly stringent and demanding” test to assessing s. 12 challenges as laid out in Steele, unelected judges will continue to invalidate sentencing laws, claiming without evidence, that such laws reduce public confidence in the justice system, which presents a deeply troubling implication for democratic rule in Canada.
The Court has two options to restore stringency to the Court’s s. 12 jurisprudence. If it wants to continue using hypothetical scenarios to strike down otherwise valid legislation, it must develop a stronger framework to ensure that such hypotheticals have an air of reality to them and that it would be reasonably foreseeable that such a hypothetical would lead to an arrest, conviction, and prison sentence.
It is also open to the Court to adopt Justice Wakeling’s suggestion and do away with the use of hypothetical situations to assess challenges to mandatory minimum laws under s. 12. In Hills, the Court seems to believe that it has laid down guidelines to ensure that judges use greater care in crafting hypotheticals. Unfortunately, evidenced by the very hypothetical used by the Court in Hills, this new framework does not safeguard against unrealistic hypotheticals which have never and will likely never occur. Thus, the best hope for a stringent and demanding test under s. 12 may be to stop using hypothetical scenarios to assess s. 12 challenges, and instead assess each challenge on the basis of the individual before the court.
Unless the Court changes course and returns to a more robust test to assessing s. 12 challenges, Canadians’ already-low confidence in the justice system will likely decline further, which will pose serious challenges to the legitimacy of judicial review in Canada.
[1] Sherman Estate v Donovan, 2021 SCC 25 (CanLII) at para 102; Kosoian v. Société de transport de Montréal, 2019 SCC 59 (CanLII) at para 74; R v Vice Media Canada Inc., 2018 SCC 53 (CanLII) at para 67; Sharbern Holding v Vancouver Airport Centre Ltd., 2011 SCC 23 (CanLII) at para 128; Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII) at para 90; R v Sharpe, 2001 SCC 2 (CanLII) at para 62.
[2] Grant Huscroft, “'Thank God We're Here': Judicial Exclusivity in Charter Interpretation and its Consequences” (2004) 25:2 SCLR at 254, online: https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1156323_code114811.pdf?abstractid=1153072&mirid=1, quoting Beverley McLachlin and Rosalie Abella.
[3] Canada, Justice Canada, Public Perception of Crime and Justice in Canada: A Review of Opinion Polls RR2001-1e (November 2001), at viii, online: https://www.justice.gc.ca/eng/rp-pr/csj-sjc/crime/rr01_1/rr01_1.pdf
[4] Huscroft, supra note 3.
[5] See also, Mario Canseco, “How do Canadians feel about the justice system?” (2018), online: https://www.nationalobserver.com/2018/02/16/analysis/how-do-canadians-feel-about-justice-system