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ADMINISTRATIVE REPORT Date: May 28, 1998
Author/Local: Ken Dobell/7627
CC File No. 111
TO:
Vancouver City Council
FROM:
City Manager, in consultation with the Director of Legal Services
SUBJECT:
Attached Paper: "Reclaiming the Voice of the Canadian People Under the Canadian Constitution"
RECOMMENDATIONS
A.THAT Council submit the attached paper "Reclaiming the Voice of the Canadian People under the Canadian Constitution" to the Federation of Canadian Municipalities in support of Council’s July 29, 1997 resolution, recommending that "The Federation of Canadian Municipalities request the Minister of Justice to introduce legislation to increase the effectiveness of law enforcement, utilizing where necessary Section 33 of the Charter of Rights and Freedoms to limit in a selective fashion the application of the Charter to correspond more closely with the values of our communities and our law abiding citizens".
B.THAT in response to the request of the Federation of Canadian Municipalities for the identification of specific issues justifying new legislation and the use of Section 33 of the Charter of Rights and Freedoms, Council advance the issues of sentencing practices and the interpretation of the Charter sections governing search and seizure and the exclusion of evidence, as described in the attached paper.
C.THAT Council resubmit its July 29, 1997 resolution requesting that "The Federation of Canadian Municipalities respectfully advise the Justices of the Supreme Court of Canada, the Federal Court, and the Provincial Courts that the communities of Canada are threatened by criminal activity, and request that the interests of the community and its law abiding members receive greater weight in their deliberations".
The Urban Safety Commission endorses the presentation to Council and to the FCM.
PURPOSE
This report submits a paper entitled "Reclaiming the Voice of the People Under the Canadian Constitution", which was prepared in support of Council’s July 29, 1997 resolution to the Federation of Canadian Municipalities (FCM) regarding legislation to increase the effectiveness of law enforcement. Recommendations to submit the paper to FCM, draw FCM’s attention to certain sections, and resubmit one of Council’s July 29, 1997 resolutions for reconsideration are provided.
BACKGROUND
Community surveys clearly establish that crime and safety are preeminent concerns of citizens in Canada. Many citizens believe that the protection of community and individual interests in the law enforcement system is seriously out of balance, with excessive emphasis on the protection of the rights of the accused. These citizens point to the presence of open drug trafficking, minimal sentences, and release of offenders on procedural grounds as examples of this imbalance, and note the widespread perception of reduced safety and the impact of crime in areas like the Downtown East Side of Vancouver.
In response to concerns of this nature, City Council on July 29th, 1997 passed two resolutions for submission to FCM:
•The Federation of Canadian Municipalities request the Minister of Justice to introduce legislation to increase the effectiveness of law enforcement, utilizing where necessary Section 33 of the Charter of Rights and Freedoms to limit in a selective fashion the application of the Charter to correspond more closely with the values of our communities and our law abiding citizens
•The Federation of Canadian Municipalities respectfully advise the Justices of the Supreme Court of Canada, the Federal Court, and the Provincial Courts that the communities of Canada are threatened by criminal activity, and request that the interests of the community and its law abiding members receive greater weight in their deliberations.
(Copies of the full resolutions are attached to this report.) FCM declined to consider the second resolution above, apparently on the grounds that it was inappropriate for community representatives to advise the judiciary of community views. In regard to the first resolution, additional information was requested identifying the kinds of concerns the City believed required new legislation and might justify use of Section 33 of the Charter (the "notwithstanding" clause).
In response to FCM’s position concerning the first resolution, a paper providing an extensive rationale for Council’s first resolution has been developed. This paper, summarized briefly in the following section of this report, draws on recent cases and court judgements to identify areas where the Courts have, in some cases by bare majorities, effectively rewritten the law governing police procedure in search and seizure, the exclusion of evidence, and sentencing practice. The paper provides a clear rationale for the first resolution and further suggests that a transparent, public review procedure for nominees to the Supreme Court of Canada is warranted. (The City Manager believes the paper also provides a strong rationale for community input to the judicial process.) Support for the use of section 33 to ensure that the law reflects appropriate community values is provided, based both on the rationale for inclusion of section 33 during the constitutional process when the Charter was created, and subsequent judicial commentary.
DISCUSSION
The following commentary attempts to summarize the major points in the attached paper. In summarizing, much of the significance of the principles and the decisions presented in the paper is lost. However, given the length of the paper, such a summary is considered necessary.
Background
•Since 1982, the Canadian Charter of Rights and Freedoms has obliged the judiciary to determine the "constitutional validity" of government actions and legislation. As a consequence, the judiciary in general, and the Supreme Court of Canada in particular, wields enormous power.
•Citizens and their elected representatives have a role, acknowledged by the judiciary, to advocate for, and legislate if necessary, the community’s conception of the proper scope and interpretation of the Charter.
•Interpretation of the Charter is highly subjective. Its provisions are subjective and abstract. Judges are given vast discretion and are themselves frequently in serious disagreement. Judges are influenced by their own social, political, and economic values.
•The "legalization" of Canadian politics has given lawyers and judges the effective final say over important public policy issues.
•"... the rights of criminal defendants and the concept of cruel and unusual punishment have been carried well beyond the decisions of the Warren Court ... in the United States.1
•The Canadian system provides for Courts to review the work of elected officials and elected officials to review the work of the Courts – ".. the work of the court in its decisions can be reacted to by the legislature in passing new legislation (or even overreaching laws under s. 33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it."2
Search and Seizure
The paper describes a number of cases in which police conduct entering premises, searching a vehicle, or seizing samples, which would likely be considered entirely appropriate and reasonable by the vast majority of citizens, was found to be unreasonable by the Courts. The evidence in these cases was legitimate and relevant, but in some of them it was not admitted. These cases demonstrate a policy preference for protecting the privacy rights of individuals and against balancing of individual and community rights. The cases include:
i)A brutal murder of an elderly man, in which police entered the accused’s trailer with information suggesting he might be the offender, but without a warrant. On awakening the sleeping individual, police discovered blood on his shirt. He was arrested. The defendant argued that the officers breached his rights by entering the trailer and that the evidence should be excluded. The trial judge and three judges of the BC Court of Appeal rejected the argument. The Supreme Court, by a 5-4 decision, reversed this decision and excluded the evidence. In the process, the Supreme Court rewrote the law on when police may enter a dwelling without a warrant. The accused was released.
ii)A brutal murder, in which a seventeen year old boy murdered a fourteen year old girl. Semen was found in her vagina. In the police station, the accused cried, blew his nose in the washroom, and the police collected the discarded tissue for DNA testing. By a 5-4 majority, the Court held that the "seizure" of the mucous was unreasonable under Section 8 of the Charter – "Everyone has the right to be secure against unreasonable search or seizure".
iii)A drug case, in which police received a tip regarding a "grow" operation. The police knocked on the door and identified themselves. They smelt marijuana, arrested the accused, and left to obtain a warrant. They discovered 41 marijuana plants. By a 4-3 majority, the Court agreed with the defendant that the "olfactory observation" was a "search", and since the police had no warrant, the search was unreasonable. The Court said that while police have the right to knock on a door, they are not allowed to do so with the intent of sniffing for marijuana. One Justice noted that this may cause police difficulty in enforcement against grow operations and suggested "If the issue issufficiently serious, it is for Parliament to amend the law".3 The evidence in this case was not excluded, but the effect of the decision is to make future exclusions in similar circumstances likely.
iv)A drug case, in which the accused was arrested after police discovered nine pounds of marijuana at a rural location where he had just previously conversed with the accused. The accused’s vehicle was pursued and he was arrested. The contents of the car were inventoried, and $1400 and two packets of cocaine were found. By a 4-3 majority, the Court found that the search of the car was unreasonable, as it was not related to the arrest.
v)Applying Supreme Court of Canada principles, the Supreme Court of British Columbia concluded that a search in which two uniformed police officers entered two feet into a room after it was opened by the accused, and one took notes to confirm a description, constituted a search without a warrant, and was unreasonable. The Court described the violation as "wilful and flagrant in the extreme".
In each of these Supreme Court of Canada cases, a single vote decided a case which limited the ability of police to enforce the law effectively. These decisions were among those which radically rewrote the law of criminal procedure, and, in the process substantially changed the balance between the interests of the community and the rights of the individual. It is questionable whether police enforcement can be effective given these constraints, and legitimate to suggest that legislation which employs Section 33 of the Charter to override the judicial interpretation of the "unreasonable search or seizure" provision of the Charter is appropriate.
Exclusion of Evidence
The Charter was enacted in the context of the English common law rule that evidence obtained by illegal means is admissible if it is relevant and reliable, as opposed to the American model which will "let the criminal go free because the constable blundered". Section 24(2) provides:
Where ... a court concludes that evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
The clear intent of this Section is that exclusion of evidence would be the exception rather than the rule. Further, it suggests that the opinion of the larger community would be the determining factor. The judiciary’s interpretation, however, is more rigid, absolutist, and Americanized than the Charter’s framers could have envisioned.
The paper describes the "Byzantine superstructure" developed by the courts to interpret Section 24(2). Three sets of factors must be considered: a) the effect of admitting the evidence on the fairness of the trial; b) the seriousness of the Charter violation: was it deliberate or flagrant, inadvertent or technical, were the police acting in urgent circumstances ... and c) the effect on the repute of the administration of justice in excluding the evidence.
The Supreme Court's comments on the case of the murder of an elderly man (case [i] above), are instructive. The majority had little concern that the accused would walk away from a brutal murder, holding that:
".....the admission of the evidence would bring greater harm to the repute of the administration of justice than its exclusion .... If the exclusion of the evidence is likely to result in the acquittal of the accused ... then the Crown is deprived of a conviction based on illegally obtained evidence. Any price to society occasioned by the loss of a conviction is fully justified in a free and democratic society which is governed by the rule of law." (emphasis added)4
The five member majority speaks of serious disregard of Charter rights, notwithstanding the position of four lower court judges and four dissenting Supreme Court judges. Regarding the exclusion of evidence, one of the dissenters noted that "The approach of the majority, as noted earlier, is a blunt instrument incapable of discriminating between degrees of trial unfairness."
It is impossible to resist the conclusion that most Canadians would consider that the Court’s decision brought the administration of justice into disrepute. It is reasonable to suggest that Parliament should consider enacting statutory principles for the exclusion of evidence, utilizing Section 33 to undo the judgements of the Supreme Court and restore a balance the community would consider reasonable.
Sentencing
Canadian sentencing is a unique mixture of statute law, constitutional law, and judicial discretion. Statutes establish maximum and in some few cases, minimum sentences. Section 12 of the Charter establishes the right "not be to be subjected to cruel and unusual treatment and punishment".
Most Canadians would not find minimum sentences for certain crimes, regardless of the circumstances of the offender, "cruel and unusual". Indeed, many would find minimum sentences for trafficking and importing legal drugs entirely reasonable. Such a law existed in Canada before 1987, imposing a minimum sentence of seven years for importing narcotics. This provision was struck down by the Supreme Court of Canada in a case where the accused was convicted of importing a significant amount of cocaine and given an eight year sentence. The minimum sentence was not struck down because the sentence was inappropriate in this or any other specific case. It was struck down because of a theoretical concern that a young person crossing the border with a single "joint" would be charged with this offence and thus receive the minimum sentence, ignoring the reality that in practice people in this circumstance were charged with a lesser offence.
A dissenting judge argued that the minimum sentence was not unreasonable, noting that
"Parliament has determined that the gravity of the offence, the protection of the public and the suppression of the drug trade are of paramount importance and that, consequently, the circumstances of the offender should be given relatively less weight."5
Society should have the right to establish minimum sentences for crimes it considers serious. Persons trafficking in narcotics are responsible for profound and prolific harms to persons and property. It is not unreasonable to suggest that minimum sentences for drug trafficking are appropriate and reasonable, given the problems experienced by cities like Vancouver, and it is legitimate to suggest that Section 33 of the Charter should be used to reinstate this community judgement.
Judges have significant discretion in sentencing, and sentences may vary widely for similar offences in different courts. A sentence of nine months for trafficking in cocaine and heroin does not match the community’s conception of an appropriate response. A sentence of a fine and a one year probation for a marijuana grow operation is equally incongruent. As noted in a recent Alberta Court of Appeal judgement,
"What is the effect of a sentence not just and appropriate, which trivializes the harm done to the victim, or fails to reflect the offender’s culpability by minimizing the consequences to him? It breeds disrespect for the law."6
Similarly, the granting of parole after only one third of a sentence has been served for a serious offence offends many Canadians. When, despite the obstacles described above, a charge is entered and a conviction obtained, the sentence imposed does not mean what it says. The law provides that a person sentenced to a numerical term (not life) is eligible for parole after the lesser of one third of the sentence or seven years.
Both the discretion of judges and the granting of parole are issues which can be addressed by Parliament. It is reasonable to argue that these issues should be considered and addressed, particularly for crimes involving the trafficking of large quantities of narcotics which have such adverse social consequences. These actions, together with re-instatement of minimum sentences, would go some way to address community concerns.
Section 33
Section 33 of the Charter provides the ability for legislation to override some (not all) Charter provisions. In particular, it can be used to override judicial decisions which strike unacceptable balances involving such issues as freedom of association and expression, and the rights discussed above relating to criminal proceedings. An override is effective for five years, at which time the legislation must be reconsidered and passed again.
The addition of Section 33 was a key element in obtaining the agreement of nine provinces that had opposed previous versions of the Charter. It preserved legislative seniority in important areas affecting the well being of the community. As one commentator said,
"The legislative override has the merit, when properly used, of applying reasoned discussion in a publicly accountable forum to the great issues of justice and public well-being at stake".7
The notwithstanding clause is not a device to take away the rights of Canadians. It is a protection for Canadians to strike the balance they want in their communities. When the issues are fundamental, when judges disagree, and when the consequences of these value judgements and balances have a significant impact on our communities, Section 33 says that the legislators may determine which values should govern.
CONCLUSION
The City of Vancouver, through its July 29, 1997 resolutions, has expressed its view about the issues which are important in its community. This paper has demonstrated that those resolutions were reasonable and appropriate. The City believes that FCM and Parliament should consider whether the changes in criminal procedures resulting from judicial decisions reflect the values that Canadians want, and should use Section 33 where appropriate to ensure that the values of our communities and our law abiding citizens are implemented.
1. Hogg, Constitutional Law of Canada
2. Vriend v. Alberta (Attorney-General) (1998), 155 D.L.R. (3d) 385 (S.C.C.)
3. R. v. Evans, [1996] 1 S.C.R. 8, LaForest, J.
4. R. v. Feeney, [1997] 2 S.C.R. 13
5. R. v. Smith, [1987] 1 S.C.R. 145, McIntyre, J.
6. R. v. Brady, [1998] A.J. No. 39 (Alta., C.A.)
7. Russell, "Standing Up for Notwithstanding" (1991), 20 Alta. L. Rev. 293
RECLAIMING THE VOICE OF THE PEOPLE
UNDER THE CANADIAN CONSTITUTION
To my mind, a great value of judicial review and this dialogue among the branches [of government] is that each of the branches is made more accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in passing new legislation (or even overarching laws under s. 33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.
Vriend v. Alberta (Attorney General) (1998), 155 D.L.R. (3d) 385 (S.C.C.)
The chief justice [of British Columbia] said public dissatisfaction with the judiciary remains a matter of concern, but noted it generally relates to "law and order issues, particularly bail, acquittals in criminal cases, and sentencing generally, where judges are required to apply the laws enacted by Parliament."
The Lawyer’s Weekly, "Complaints Dismissed", Vol. 17, No. 7 (April 24, 1998), p. 2.
I. The purpose of this paper
Canadians live in constitutional democracy. Under our system of government, democratically elected legislatures are responsible for creating and passing laws enacted in the public interest. The role of the independent Courts in this system is to adjudicate any disputes that arise regarding these laws. On most occasions, the disputes adjudicated by Courts involve issues concerning how a democratically enacted law should be interpreted. On other occasions, however, Courts are asked to rule on whether the law itself, or whether some action taken under the law, is valid when "measured" against the standards set out in the Constitution. On these occasions, judges may overturn a law which reflects the will of the community as reflected by the judgment of its elected representatives.
Since the advent of the Canadian Charter of Rights and Freedoms in 1982, the judicial role in determining the "constitutional validity" of government actionand legislation has taken on enormous significance. It is undeniable that today, the judiciary in general, and the Supreme Court of Canada in particular, wields enormous power. A single vote on the Supreme Court of Canada can have enormous implications for any area of public policy, from the criminal justice system and law enforcement, to the regulation of obscenity, to the law regarding euthanasia and abortion, to the standards of "equality". The nature and extent the judiciary’s proper function in a constitutional democracy has been the subject of much commentary, and will be discussed later in this paper.
What has been largely absent from the discussion, however, is an elaboration of the fundamental role that citizens and their elected representatives continue to play in our constitutional democracy. In the passages quoted at the outset of this paper, the judiciary itself has recognized that our democracy will function only if citizens are willing to exercise their collective responsibility to keep the judiciary accountable and, where necessary, to assert our conception regarding the proper scope and interpretation of the Charter. If, for example, the judiciary is interpreting Criminal Code provisions regarding bail or sentencing in a fashion not in keeping with the community’s understanding or expectation, the community, through the Parliament of Canada, can amend the law to reflect its consensus. If the judiciary strikes down a law or action based on a Charter interpretation which Canadians believe seriously fails to properly balance competing interests, they should exercise the power - a power which was fundamental to the very agreement to have a Charter of Rights - to invoke the "notwithstanding" clause in s. 33 of the Charter.
The City of Vancouver believes that, particularly in the area of criminal law, the Parliament of Canada has abdicated its constitutional duty and function in ensuring a proper balance for our criminal justice system. This abdication isreflected in the absence of any transparent process for the appointment of federal judges despite their tenure and the enormous power they wield after appointment. It is reflected in Parliament’s failure to amend Criminal Code provisions which judicial interpretation and subsequent experience have proven to be unacceptable and unrealistic. It is reflected in the virtual paralysis of Parliament to exercise its express power in s. 33 of the Charter to invoke the "notwithstanding clause" where unacceptable Supreme Court of Canada judgments are pronounced.
The Supreme Court of Canada has itself acknowledged that the Charter was built on a premise that Courts should not have the monopoly in determining "rights" issues. In contrast to the reality in the United States - and probably to avoid that reality - the Canadian way was to resolve these questions in the context of our own uniquely designed system of "checks and balances" to ensure a "dialogue" between elected legislators and unelected Courts. The imbalance reflected in our criminal justice system today arises largely because to date, accountability has been a one way street. A dialogue with only one voice does not produce constructive solutions.
The City of Vancouver strongly believes that in order to restore the balance in our constitutional democracy, citizens at the grass roots level must send Parliament a strong and principled message that they will not accept inaction by the legislative assembly charged with constitutional responsibility for criminal law and procedure. One step to this end was the passage of the City’s unanimous Resolution on July, 29, 1997 recommending that the Federation of Canadian Municipalities
...request the Minister of Justice to introduce legislation to increase the effectiveness of law enforcement, utilizing where necessary section 33 of the Charter of Rights and Freedoms to limit in a selective fashion the application of the Charter to correspond more closely with the values of our communities and our law abiding citizens.
In order to elaborate on the points made in this introduction, the City of Vancouver proposes first to discuss the nature of and reasons for the inherentdilemma of judicial review under the Charter. The paper will then examine how judicial power has manifested itself in specific areas including search and seizure, the exclusion of evidence and sentencing. Finally, the paper will conclude with a discussion of the purpose of the notwithstanding clause and the fundamental importance for governments to be willing to invoke the clause in appropriate circumstances.
It perhaps goes without saying that it is not the purpose of this paper to heap unprincipled criticism upon judges who perform an extremely difficult function within limited resources and in very trying circumstances. The judiciary holds and has earned an essential and respected place in our system of government. The judiciary did not ask for the Charter; it was given to the judiciary: Brian Dickson, "The Canadian Charter of Rights and Freedoms: Context and Evolution", ch. 1, The Canadian Charter of Rights and Freedoms (3d ed., 1996), p. 1-15. Members of the judiciary are the ones who must decide cases based on all the facts and in light of a series of often vaguely worded constitutional provisions. The judiciary is essential to order and to the rule of law. Its members speak only through their judgments. We recognize that they cannot respond directly when criticism is unfair and uninformed. We therefore proceed on the premise that any discussion on these difficult subjects must proceed in the best traditions of citizenship. While we believe that criticism must be fearless and at times direct, it must at all times be respectful and informed.
At bottom, we believe it to be entirely appropriate for the custodians of the justice system - legislators, the judiciary and the legal profession - to hear these concerns. In a vibrant democracy, debate and constructive criticism must be allowed and encouraged on such fundamental questions. The very point of this paper is that these issues are for the people. They not just for lawyers,academics and other elites.
II. The Judiciary’s Role under the Charter
The judicial role under the Charter has given rise to a profound dilemma. On the one hand, the very purpose of the Charter was to establish a unifying and national set of basic rights that all Canadians would enjoy and which would be protected by an independent judiciary. The judiciary’s protection of these rights would help to protect members of our society who have little power or popularity from what is sometimes referred to as the "tyranny of the majority". At the same time, the Charter itself recognizes that the majority is not always wrong, that some questions do not have a single clearly "correct" answer and that in our democratic system it is a very serious matter for unelected judges to invalidate government action. Therein lies the rub.
The reality of Charter adjudication is a far cry from the conception that judges are merely "measuring" laws and actions of government against the "objective" guarantees of the Charter. The past 16 years of Charter experience have clearly demonstrated that the "guarantees" of the Constitution mean largely what the judges say they mean. The open-ended and abstract language of the Charter -e.g., "freedom of thought, belief, opinion and expression" (s. 2(b)), "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" (s. 7), "the right to be secure against unreasonable search and seizure" (s. 8), "the right to be tried within a reasonable time" (s. 11(b)), "the right not to be subjected to any cruel and unusual treatment or punishment" (s. 12) - rarely give rise to a single and obvious interpretation, let alone a clear application to the facts of particular cases. As Charter judgments have repeatedly shown, judges themselves often display serious disagreement regarding the meaning of Charter rights and the proper methods of interpretation, which disagreements often lie in different judges’ explicit and implicit assumptions regarding the nature andimportance of competing values and their own proper institutional role and limitations vis a vis government. These differences are only magnified under section 1 of the Charter which specifically provides that all Charter rights are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
Within this context, questions regarding "who are these judges?" and "how do they approach Charter adjudication?" become critically important in understanding and anticipating the Courts’ work product.
In the United States of America, upon whose system of a judiciary interpreting an entrenched Bill of Rights the Charter was modelled, these very questions have been discussed for decades without fear or apology. Americans know from experience that their judges wield enormous power. They are aware that the judges who pronounce on these fundamental policy questions constitute an elite and unrepresentative segment of American society. This group of former lawyers, who are accountable to no one for their decisions after appointment, is charged with the difficult task of "assessing" the validity of government action against the "guarantees" of the Constitution. Their decisions affect the entire nation.
It is perhaps a reflection of the Americans’ abiding belief that all power requires accountability that they require tenured federal judicial appointments, particularly Supreme Court appointments, to be subject to prior and transparent scrutiny by the people through the Congress. The rationale for this review is perhaps explained best by considering the words of James Madison in Federalist 51:
It may be a reflection on human nature that [checks and balances] should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men,neither external nor internal controls on government would be necessary. In framing a government which is administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
It is fair to observe that in the United States, Courts have been viewed as more akin to governments than to angels. While one might debate the merits of the American method for scrutinizing judicial appointments, few in that country would argue that the President’s candidate should be appointed on the Canadian model of a unilateral decision by the Government without meaningful public scrutiny. The "court packing" controversy of the 1930s and the very different approaches to constitutional adjudication reflected by the "Warren Court", the "Burger Court" and the "Rehnquist Court" prove beyond a doubt that, as with all organs of power in a system of government, the composition of the Courts is critically important to the fashion in which they function. It is often said that an American President’s greatest legacy is the people he appoints to the Supreme Court. The same may be true of a Canadian Prime Minister. As recently stated by former Supreme Court of Canada justice Gerard La Forest: "I think, in principle, the public has the right to know what kind of people are on the Court": The Lawyers Weekly, Vol. 17, No. 19 (September 26, 1997), p. 31.
The Americans’ keen interest in the people who become their judges is closely tied to the debate which continues to rage in that country regarding the Court’s appropriate role in interpreting the Constitution. Recognizing that the only limits on judicial power after appointment are those the Courts impose upon themselves, a vast body of scholarship and jurisprudence has grown up regarding the appropriate limits of judicial review. None of these approaches is so naive as to hold out any magic formula that will solve the complexities of individual cases. As John Hart Ely fairly noted, "there does not exist a nontrivial constitutional theory that will not involve judgment calls": Ely, Democracy and Distrust (1980), p. 67. Nonetheless, almost all approaches to judicial review are based on the belief that there ought to be a set of clear principles that oughtto inform "legitimate" judicial action under the Constitution.
Precisely the same issues arise in the context of the Canadian Charter. As noted by Patrick Monahan in The Charter, Federalism and the Supreme Court of Canada (1987), at p. 32:
The issue of legitimacy does not centre on whether to have judicial review at all; this "big" question was settled by the enactment of the Charter in 1982. What the enactment of the Charter did not resolve was the subsidiary and more narrow issues of whether there are inherent limits to judicial review in the Canadian context. Once it is acknowledged that such limits exist, then the issue of legitimacy is joined. The very act of defining the limitations of judicial review requires the identification of those forms of judicial review which fall outside of the limits and are therefore inappropriate or "illegitimate".
Despite the amount of ink which has been spilled on the subject, the search for a single unifying theory of judicial review - let alone a theory that has the consensus of the Courts - has proved to be elusive. Amid the many theories of judicial review which resort to "textualism", "original intent", some version of "natural law" or justifications based on "enhancing democracy", there is a recognition that, for better or worse, judges often rely heavily - as much out of practical necessity as anything else - on their own personal values in resolving difficult constitutional issues. As noted by Ely at p. 48:
It’s because everybody deep down knows this that few come right out and argue for the judge’s own values as a source of constitutional judgment. Instead, the search purports to be objective and value-neutral; the reference is to something "out there" waiting to be discovered, whether it be natural law or some supposed value consensus of historical America, today’s America, or the America that is yet to be.
Professor Hogg has recognized the same reality in the Canadian context: "...[i]n performing that task, the judges will inevitably influenced by their own social, economic and political values. They will also be influenced by their attitudestoward the appropriate relationship between the Courts and the other branches of government": Hogg, Constitutional Law of Canada (1997), p. 33-6.
In Canada, the Courts have finessed issues about "legitimacy" by articulating a general approach to constitutional adjudication that is sufficiently flexible to allow for various adjudicative approaches to be integrated by a judge according to the particular case and circumstances. Very early in the life of the Charter, the Supreme Court of Canada stated that Charter rights should be interpreted in a "purposive" fashion. Under this approach, the Courts interpret Charter rights having regard to the Charter’s text and its historical and philosophical context, but also to other more subjective factors such as the "interests the right was meant to protect" and the "character and larger objects of the Charter itself": R. v. Big M Drug Mart, [1985] 1 S.C.R. 295. This approach is to be applied "generously", a direction that reflects "the course of judicial activism", since it necessarily implies at once a tendency in favour of a broad interpretation of Charter rights at the expense of government action and legislation, and a good deal of discretion in identifying the purpose of the particular right or freedom in question: Hogg, supra, p. 33-19. This discretion was amplified when the Courts decided that Charter rights must, in addition to being interpreted "purposively" and "generously", be considered in a "contextual" fashion. This has meant that, depending on the Court’s assessment of the presence and significance of other competing values, Charter rights and freedoms may be given more or less weight in one context than another: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.
The vast discretion given to Courts in constitutional adjudication is only magnified after a Charter breach has been found. Where legislation is found to breach a Charter right, the Courts must then decide whether under section 1 of the Charter, the limitation on the right or freedom is "reasonable and demonstrably justified in a free and democratic society". Despite a vast section 1jurisprudence which places the onus on government to defend legislation which has given rise to a prima facie breach a Charter right, and the Court’s willingness to display deference to legislative judgment in some areas, the reality again is that assessments regarding reasonableness are questions of policy rather than logic. They depend almost exclusively on the views and perspective of the assessor. The Supreme Court of Canada has displayed little reluctance about actively imposing its own judgment and to engage in a very raw and subjective balancing of interests. In fact, in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, the Court expressly modified the section 1 test so that even if government proves that a law has "pressing and substantial objectives", and further proves that the means chosen to achieve the objectives are rational and impair Charter rights "as little as possible", the Court may still strike down the law if it considers that the law’s "salutary effects are outweighed by its deleterious effects": pp. 887-88. In many if not most legislative contexts, making the validity of legislation turn on an assessment of the "good" versus the "bad" effects of legislation is no more or less than an exercise in raw political decision-making.
There are some who view the inherent subjectivity of Charter adjudication as a very good thing - as an opportunity for an elite, wise and well-informed segment of the population to exercise a leadership role in shaping Canadian society. In the words of former Supreme Court justice Bertha Wilson: "Our Charter is and must be a vital force in molding the lives of Canadians": Schneiderman and Sutherland, Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (1997), p. i. There are others, however, who wonder whether the lives of Canadians ought to "molded" in the image of any Supreme Court justice, no matter how learned or well intentioned: see generally Peacock, ed., Rethinking the Constitution (1996).
Part of the concern relates to the impact of overly expansive Charter interpretation on the health of Canadian democracy itself. It has taken only a few short years for a comment made by de Tocqueville in America to come true in Canada: "Scarcely any political question arises that does not, sooner or later, become a legal question". The "legalization" of Canadian politics has produced a number of undesirable consequences. It has given lawyers and judges the effective final say over important public policy issues. Even where issues are debated in the public arena, current rhetoric is couched in terms of "rights" rather than the values of responsibility, compromise and accommodation. "Charter speak" encourages polarization and opposition; it rarely brings people together as human beings with shared interests and with more in common than divides them. It encourages extreme positions by persons engaged in public policy debate. Legislative fear and paralysis often ensue. Rarely does it encourage legislators to exercise the sort of courageous, balanced, informed and ethical judgment that is in the best traditions of the Westminster model of Government - a model which is no less "free" than Canada despite the absence of an entrenched Bill of Rights. The point is well made by Monahan, supra, at p. 138:
....when citizens are deprived of control over their own lives, public values and civic energy are corroded. Morality becomes a matter for specialists rather than citizens. Because citizens are no longer competent to define their own values and traditions, public morality will atrophy rather than be purged. The appointment of the philosopher king merely exacerbates the very problem it was designed to remedy....
Democracy does not guarantee civic enlightenment. But if the collective morality of the community is to become more informed, this will be achieved through more rather than less democracy....
Judicial fiat is no substitute for such civic deliberation. Rule by judiciary supposes that the only way to deter oppression is to impose external constraints on the political process. But because such external constraints deny the competence of citizens to arrive at informed ethical judgments, they undermine the very process of reflection and self-criticism which might lead to a more mature collective morality. Elitist politics breeds only a mob; to produce citizens, one needs democracy.
Given the remarkably value-laden exercise in which the Courts are enmeshed when adjudicating Charter cases, Hogg, supra, has remarked on how "curious" it is that "this period of judicial activism has not been accompanied by the public controversy about the role of the Court that has now become standard fare in the politics of the United States": pp. 33-8 - 33-9.
It is true that in Canada, the Courts have rarely been subject to the same degree of scrutiny and controversy for their judgments as are politicians when they make decisions about the same subject matter. We would suggest that at least four factors account for this difference. First, the deference the Canadian public has shown the Courts since 1982 is a testament to the historic and deserved respect that the judiciary has properly earned in exercising its traditional role as a body independent of the political branches of government. Secondly, however, this deference is a testament to the fact that even today the Courts continue to utilize their traditional "objective" judicial language in explaining their Charter judgments. The positivist rhetoric of judicial discourse often serves to deflect criticism of particular judgments by attributing responsibility for those judgments to "the Charter" rather than to the views and discretion of the particular judge who happens to be interpreting the Charter: see for example, Dagenais v. C.B.C., [1994] 3 S.C.R. 835 at 886; R. v. Feeney, [1997] 2 S.C.R. 13.
Third, except in the most sensational cases, it is a reality that the general public rarely has occasion to know what is happening in the Courts. Ideed, while Canadians are generally aware through popular literature of periods in America where the Warren Court expanded the rights of criminal defendants to unhealthy extremes, most Canadians would be surprised to learn that in Canada "the rights of criminal defendants and the concept of cruel and unusual punishment have beencarried well beyond the decisions of the Warren Court ... in the United States": Hogg, supra, p. 33-8.
Finally, it is a reality that many of the leading opinion-makers in Canada are supportive of a Charter whose original intent was to preserve national unity, which grants power to interests that would otherwise have to compromise within the political process, and which allows powerful elites in the legal profession, the academic world and the media to mold a vision of society through the Courts, which they might otherwise fail or achieve, or fail to achieve as quickly, through the political process: see generally, Knopff and Morton, "Canada’s Court Party", ch. 4 in Peacock eds., Rethinking the Constitution, supra. The virtually unanimous support of the failed Charlottetown Accord by mainstream political parties, mainstream media, big business and trade unions demonstrates that, in contrast to the United States, it can be more of a challenge to hear informed voices of dissent in Canada. It is therefore no surprise that, in large part, the Courts have been able to exercise their task of Charter adjudication without the meaningful degree of scrutiny that regularly occurs in the United States. It is also no surprise that those same groups would prefer to cast their political lot with the Courts under the Charter than with the views of the general public in a democratic setting.
Times are changing however. Leaders from all levels of government are beginning to hear the voices of their constituents to the effect that, particularly where their safety and security are concerned, the Charter is doing little to serve them. Contrary to the protestations of the "experts" within the academic community and the defence bar, these are not hysterical, uninformed voices. They are fair voices, and they resonate with truth and with concern about balance in the Canadian justice system. They are voices which their elected representatives must not ignore.
While it is generally understood that the Constitution of Canada, which includesthe Canadian Charter of Rights and Freedoms, exists to allow all citizens to remain free and secure within a body politic governed by the rule of law, the City of Vancouver believes that in many significant respects, the Charter has failed to realize these objectives. In fact, from the City’s perspective, the interpretation and application of the Charter has achieved the opposite result. In contrast to freedom and security, 16 years of Charter experience has bred a great deal of well-founded fear and insecurity. This is particularly true in criminal law and procedure, a matter over which the federal Parliament has exclusive legislative jurisdiction.
There is widespread recognition that in pursuit of the legitimate goal of ensuring a fair process for those accused of crime, the core value of discovering the truth about offences has been unjustifiably compromised. There is also serious concern that, for those cases which do result in conviction after lengthy and complex proceedings, the sentences accorded offenders do not fit the crime. It is undeniable that the repute of our criminal justice system - a system in whose success all Canadians have a vital stake - has been seriously shaken.
The main thesis of this discussion paper is that while we must of course respect and carefully weigh the judgments of the Courts on the difficult issues that confront them in interpreting the Charter, the system will not work unless legislators exercise their responsibility to recognize Charter judgments for what they are and, in appropriate cases, to have the fortitude to exercise s. 33 to redress the balance in cases where the Courts have seriously erred. As noted by Professor Hogg, supra, at pp. 33-10 - 33-11:
Judicial power under a bill of rights is naturally greatest when the Court has a conclusive veto over legislation. This is the situation in the United States, of course, where the decisions of the Supreme Court of the United States can be overcome only by the difficult and time-consuming process ofconstitutional amendment. In Canada, however, the Charter includes, as s. 33, an override power, which enables Parliament or a Legislature to enact a law that will override the guarantees in s. 2 and ss. 7-15 of the Charter. All that is necessary is the enactment of a law containing an express declaration that the law is to operate notwithstanding the relevant provisions of the Charter. Once this declaration has been enacted, the law that it protects will not be touched by the overridden provisions of the Charter.... With respect to the provisions that can be overridden, any judicial decision could be overcome by the re-enactment of the invalid statute coupled with a declaration of override; in other words, the judicial veto is suspensory only. The fact that the elected legislative bodies have been left with the last word answers a good deal of the concern about the legitimacy of judicial review by unelected judges.
Section 33 is not about taking rights away from people; it is about who shall have the final say in deciding what those rights are, and how they should be balanced against other rights. The Supreme Court of Canada has itself referred to s. 33 as a remedy to those who would question its decision to override legislative judgment: Vriend, supra.
Just as the Supreme Court of Canada has been unapologetic about its Charter judgments and about its role in overturning the decisions and actions of elected officials, so elected officials should courageously and wisely exercise the means within their grasp - a means specifically devised for this purpose - to assert the public interest in an informed and balanced fashion where the Courts have seriously failed in that function under the Charter.
A compelling case for the use of the notwithstanding clause can be made in a number of areas. For this purpose, however, the City of Vancouver proposes to focus on the area which has been of greatest public concern - that of criminal law and procedure. For purposes of illustration, the City proposes to focus on a series of areas including search and seizure, the exclusion of evidence and sentencing.
III. Search and seizure
Section 8 of the Charter provides as follows:
8. Everyone has the right to be secure against unreasonable search or seizure.
This section guarantees everyone the right to be secure against unreasonable search and seizure. As is seen from the plain language of section 8, the framers of the Charter did not intend to prohibit all search and seizure. The guarantee is couched in terms of unreasonable search and seizure. In order to contravene section 8, a person must show not only that particular conduct amounts to a "search" or "seizure", but that the search or seizure was unreasonable.
Early in the life of the Charter, the Supreme Court of Canada stated that a "purposive" interpretation of section 8 dictates that we should apply the same general approach in this area that the U.S. Courts apply under the Fourth Amendment to the U.S. Constitution, that section 8 should focus on privacy interests rather than property interests. The Supreme Court of Canada has therefore defined a "search" as any state intrusion on an individual’s "reasonable expectation of privacy": Hunter v. Southam Inc., [1984] 2 S.C.R. 145. The "reasonableness" of a search is to be evaluated by balancing the person’s privacy interest against the state’s interest in law enforcement: R. v. Caslake, [1998] S.C.J. No. 3. For a search to be "reasonable", the search must be authorized by law (statute or common law), the law itself must be reasonable and the search must be carried out in a reasonable manner.
The Court has, however, gone much further than this, and made the policy decision that where an accused person has demonstrated that a search is warrantless, the Crown has the burden of proving that the search was, on the balance of probabilities, "reasonable": Caslake, supra. Section 8 has thereby been transformed from a protection against unreasonable search and seizure into ageneral "privacy" provision which extends well beyond the intrusion into or taking of property and which effectively deems any warrantless search in the criminal context to be unreasonable unless it can be "justified" by the Crown.
Needless to say, the task of identifying situations where persons ought to have a constitutionally protected "reasonable expectation of privacy", and the balancing of those privacy interests against the state’s interest in law enforcement, are highly subjective. The frequent divisions on these very issues in the Provincial Superior Courts in general - and within the Supreme Court of Canada itself where voting patterns on criminal justice questions can often be predicted - show that the "answers" depend very much on the judge’s own personal background, experience and ideology, his or her views regarding the appropriate balance between liberty and law enforcement and the "justice" of the particular situation before the Court.
A few among many possible examples from Supreme Court of Canada jurisprudence will serve to illustrate these observations.
a. R. v. Feeney, [1997] 2 S.C.R. 13
On June 8, 1991, the accused Feeney brutally murdered 85 year old Frank Boyle in the small town of Likely, B.C. Feeney committed the murder by striking Mr. Boyle several times to the head with a blunt metal instrument. The murder scene was covered in Mr. Boyle’s blood. The nearest RCMP detachment was over one hour’s drive away, in Williams Lake. After attending the murder scene, police learned that Mr. Boyle’s pick up truck had been found in a ditch 500 metres west of his residence. While attending at that location, a witness told them she had earlier seen Feeney walking away from the truck accident. Another witness told them she heard that Feeney had, earlier that day, stolen and crashed a second vehicle at that exact same spot.
The investigators formed the view at that point that the person who stole Mr. Boyle’s truck was likely involved in his murder. They were told Feeney was stayingwith friends as a guest. When police attended the residence, the owner told them Feeney had gone to sleep in the storage trailer behind the house. The officer proceeded to the trailer, knocked on the door and yelled "police". There was no answer, and police entered. Feeney was lying asleep on a bunk. Police awoke him and said they wished to talk to him. They asked Feeney to step toward the light, and when he did they saw blood on his shirt. He was immediately placed under arrest, was read his right to counsel and acknowledged that he understood those rights. He was taken to the detachment. Later, police obtained a search warrant and discovered money and cigarettes.
While at the detachment, Feeney tried several times unsuccessfully to contact a lawyer. That evening, despite the fact that he wished to contact counsel and had not done so, he was questioned. He admitted striking Boyle and stealing beer, money and cigarettes from his house.
Feeney argued that the police breached his rights by entering the trailer, and that all evidence obtained after the entry should thereby be excluded. The trial judge and the British Columbia Court of Appeal (4 judges in total) unanimously rejected this argument. However, by a bare 5-4 majority, the Supreme Court of Canada reversed these judgments and excluded the evidence.
The primary focal point of the case was whether police had the legal authority to enter the trailer without a warrant. Only 6 years earlier, the Supreme Court of Canada had held that police may enter and arrest a person within private premises without a warrant where the following conditions were met: (a) police make proper announcement prior to entry; (b) police have reasonable grounds to believe the person is in the premises; and (c) police have reasonable grounds to believe the person committed an indictable offence: R. v. Landry, [1986] 1 S.C.R. 145. Thesewere all significant and meaningful safeguards intended to balance privacy rights with the public interest in law enforcement.
The majority held that police did not, either subjectively or objectively, have reasonable grounds to believe Feeney had committed the offence at the time they entered the trailer. The majority relied heavily on the testimony of the officer in charge that he did not feel he had grounds for arrest when he entered the trailer. However, the majority went further. It held that even if the police had met the requirements of Landry, its view was that Landry had now been overtaken by "the Charter". In a revealing passage, the majority said this about Landry [para. 42]:
In my view, the conditions set out in Landry for warrantless arrests are overly expansive in the era of the Charter. As noted, Landry was largely based on a balance between privacy and effectiveness of police protection, but in the Charter era, as I will presently seek to demonstrate, the emphasis on privacy in Canada has gained considerable importance. Consequently, the test in Landry must be adjusted to comport with Charter values.
This passage discloses the majority’s clear policy preference in favour of "privacy" and against even the balancing of the community’s interests in law enforcement in this context. This is an extreme view of the Charter which forbids police, except in cases of "hot pursuit", from ever entering a dwelling house without a formal search warrant. Manifestly, section 33 gives the community the right and the responsibility to re-establish the balance that existed in the 130 years of Confederation before Feeney was decided.
That the majority’s conclusions were not mandated by "the Charter" is reflected in the powerful dissenting reasons in Feeney. The dissenters held that, at the time they stood on the trailer’s doorstep, there were clearly reasonable grounds to believe Feeney had committed the murder. With reference to the majority’s reasons, the dissent stated [para. 115]:
...this approach, with respect, fails to take into account the combined effect of the facts in light of the particular context of this case. On the contrary, it would seem that my colleague has lifted these circumstances from where they occurred and instead, treated them as if they took place in a vacuum. Once the facts are returned to their proper setting, I believe a much different picture emerges.
The dissenters also took issue with the majority’s finding that the officer in charge did not, upon entry, have the subjective belief that there were reasonable grounds to believe Feeney committed the offence. "Where, as here, a skillful cross-examination elicits the desired response from an officer, it should not automatically be assumed that the officer lacked the justification for an arrest": para. 122.
The dissenters refused to discard Landry merely because of "the Charter". In their view, the matter could be resolved by applying Landry and recognizing "exigent circumstances", a notion which is well established in American law and which takes into account factors such as the need to avoid the destruction of evidence, the need to solve a serious crime, the need to prevent further violence and the impracticality of obtaining a search warrant. As noted by the dissent at para. 148:
...the power of arrest is a crucial part of law enforcement. For that reason, it is unrealistic to suggest that the police can never enter private premises without a warrant for the purposes of arrest. As our jurisprudence has always recognized, this would severely impede the ability of police to capture persons suspected of criminal activity and to preserve evidence necessary to convict them. Neither can I accept that it is only in circumstances of hot pursuit that the police are permitted to enter a dwelling house without a warrant for the purpose of arrest.....
Simply as a matter of logic, it is reasonable to assume that aside from cases of hot pursuit, situations will arise in which the threat to society and the danger of having law enforcement aims frustrated will outweigh concerns about privacy.
By dint of a single vote on the Supreme Court of Canada, Feeney walked free. The majority’s justification for that result is discussed below in the section dealing with "exclusion of evidence".
b. R. v. Stillman, [1997] 1 S.C.R. 607
This is another murder case. In this case, a 17 year old boy brutally murdered a 14 year old girl. She died from wounds to the head. Semen was found in her vagina and a human bite mark was left on her abdomen. The accused was arrested and taken to the police station. While there, his lawyers advised the police by letter that the accused would not consent to provide any bodily samples or give any statements.
While at the police station, the accused cried. At one point, he went to the washroom accompanied by a police officer. He used a tissue to blow his nose. He threw the tissue into the wastebasket. The police officer collected the discarded tissue for DNA testing.
By a 5-4 majority, the Court held that the "seizure" of the discarded mucous was unreasonable under section 8 of the Charter. The majority characterized the officer’s taking of the tissue as "surreptitious". It stated at paras. 62 and 63 that:
A different situation is presented when an accused in custody discards items containing bodily fluids. Obviously an accused in custody cannot prevent the authorities from taking possession of these items....
...in this case, the accused had announced through his lawyers that he would not consent to the taking of any samples of his bodily fluids. The police were aware of his decision. Despite this they took possession of the tissue discarded by the appellant while he was in custody. In these circumstances the seizure was unreasonable and violated the appellant’s section 8 Charter rights.
As in Feeney, this finding evoked a split on the Court. One of the dissenting judgments put the matter this way (per McLachlin J. at paras. 223, 225, 226-229):
In my view the police action in taking the tissue did not violate section 8 of the Charter. The tissue was not obtained as a result of a search of the appellant. Nor was it seized from him; he had discarded it. To put it another way, the appellant had abandoned any privacy interest in the tissue that he may have had....
The majority of this Court on this appeal would reject the unanimous view of all other judges who have considered the matter on the ground that "it is somewhat misleading to speak of abandonment in the context of evidence obtained from an accused who is in custody....
With respect, this is to assume the very point in issue. The issue is whether the taking of the discarded tissue was a search at all. If it was not, the requirement of consent ... does not apply. A suspect need not consent to the police taking what is no longer his.
[The argument based on custody] is a self-incrimination argument.... But the privilege against self-incrimination does not apply to real evidence....
While it is true that the samples may be created as a result of the arrest and detention, the fact remains that the bodily state to which they attest and which gives them their significance is not created by the detention. It has a real existence apart from the detention. The detention merely provides an opportunity to ascertain that bodily state. Just as a police officer confronted with a drunken suspect in custody may later testify as to his apparent drunkenness, so a police officer who finds a discarded tissue can testify to that. The body tells its own story.
In addition to the discarded tissue, the police, after consulting with Crown Counsel, also obtained samples of the accused’s scalp hair and took plasticine teeth impressions. They required him to provide pubic hair. The police based these demands on the notion of search incident to arrest, and the notion that these requirements were not substantially more invasive than the taking of fingerprints. On this point, the Court held by an 8-1 margin that theseinvestigative steps were invalid. The majority held they were much more "invasive" than the taking of fingerprints. The dissenter disagreed: "the state’s law enforcement interests in undertaking more commonplace or routine procedures, which involve virtually no risk, trauma or pain for the person, may, exceptionally and in light of the totality of the circumstances, prevail over the privacy interests of the individual": para. 166.
In free societies founded upon the Westminster Model, including Canada up until 1982, legislators were required to grapple with the appropriate balance between competing interests in the area of criminal procedure. As the majority and dissenting judgments illustrate, the question as to how that balance should be struck as between discarded mucous, hair samples or dental impressions is a matter for legitimate debate. What cannot be denied however are these questions are the proper subject of legislation and that it is entirely legitimate for Parliament to decide that the policy balance it has struck is to be preferred to that chosen by a particular configuration of the Supreme Court of Canada.
It is true that, in 1995, Parliament enacted provisions which authorizing the taking of bodily samples upon obtaining a warrant from a Provincial Court judge: Criminal Code, ss. 487.05 - 487.09. However, as noted by the dissenting justice in the Supreme Court of Canada, these amendments do not go beyond "clarifying" the existing law at the time. They do not address the more important and broader question regarding when police may obtain bodily samples as incident to arrest. Indeed, our criminal justice system badly requires parliamentarians to set out a series of statutory rules that clarify police powers incidental to arrest.
c. R. v. Evans, [1996] 1 S.C.R. 8
Evans was a drug case. The facts were that police received a tip that the appellants were growing marijuana in their home. The police checked criminal records, electricity records and performed a visual perimeter search of the home. These steps disclosed nothing. The police decided to conclude the investigation by knocking on the front door and if opened, questioning the residents. They knocked and Evans answered. The police identified themselves. They smelled marijuana and arrested Evans. They entered the dwelling to secure the premises. In so doing, they found a room containing marijuana plants. They left and obtained and search warrant. When they returned, they located 41 plants and various drug paraphernalia.
Evans submitted that the police violated his rights. He said the police did not have grounds to obtain a search warrant before approaching his house, that their "olfactory observation" was a "search" and that since they had no warrant the search was unreasonable. By a 4-3 majority, the Court agreed.
The majority (per Sopinka J.) held that while police are allowed to knock on a person’s door without a search warrant, they are not allowed to do so with a subsidiary intent of "sniffing" for marijuana when the door is opened. The "implied invitation to knock" which the public gives to police is only for communication purposes. Sniffing without consent is a breach of a person’s reasonable expectation of privacy. In separate concurring reasons, La Forest J. recognized that the effect of this judgment was that "police may have considerable difficulty in bringing to justice persons engaged in cultivating marijuana in their homes. If the issue is sufficiently serious, it is for Parliament to amend the law" [para. 4].
For their part, the dissenters did not consider the spectre of police using their sense of smell outside an opened door to be an unacceptable affront to civil liberties:
The police conduct in this case did not constitute a search within themeaning of s. 8 of the Charter. In approaching the front door of the residence in broad daylight and knocking on the door, the police officers were exercising an implied licence at common law. When the door was opened, the observations made by the police officers from this position were simply that: observations of what was in plain view. The appellants could not have any reasonable expectation that no one, including police officers, would ever lawfully approach their home and observe what was plainly discernible from a position where police officers and others were lawfully entitled to be....
In my view, the "risk" that growing marijuana will be smelled by police officers standing at the front door while lawfully entitled to do so is of the same order as the risk that someone is a "tattletale".
As noted by Professor Hogg, supra, at p. 45-10, "catch 22" is the only message the unfortunate police officers can take from this decision. Before going to the front door they had insufficient evidence to obtain a warrant, and after going to the front door, when they had sufficient evidence, they were not allowed to use their observations to obtain a warrant. Only those engaged in illegal activities can benefit from this decision. No civil libertarian value was at stake, since the police were not asserting any right to enter the house without a warrant or to force people to answer questions.
While it is noted that the evidence was not excluded in that case, now that the law has been "laid down", it is highly likely that any similar actions in the future will result in the exclusion of evidence. Police must now comply with this law. Evans is yet another example of a circumstance that cries out for action by lawmakers.
d. R. v. Caslake, [1998] S.C.J. No. 3
This is another drug case. The accused was arrested for possession of narcotics after an officer discovered a yellow garbage bag containing nine pounds of marijuana at a rural location where he had just previously conversed with the accused. The accused’s vehicle was pursued and he was arrested. Police had hiscar towed to the police garage. Approximately 6 hours after the arrest, they performed an inventory search of the vehicle. They found $1400 in cash and two packages containing cocaine. The police officer testified that he searched the vehicle pursuant to R.C.M.P. policy which requires that an inventory be taken of the condition and contents impounded vehicles. The Crown argued that such an inventory search is entirely reasonable and permissible as an incident to a valid arrest.
By a 4-3 majority, the Court held that the search was unreasonable. The majority held that to be valid, a vehicle search without warrant must be "truly incidental to the arrest in question". The tenor of the majority approach - which is reminiscent of Feeney - is well reflected in the following passage [paras. 21, 22]:
In my view, it would be contrary to the spirit of the Charter’s section 8 guarantee of security against unreasonable searches or seizures to allow searches incidental to arrest which do not meet both the objective and subjective criteria. This Court cannot characterize a search as being incidental to arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test. The objective element ensures that the police officer’s belief that he or she has a legitimate reason to search is reasonable in the circumstances.
Requiring that the search be truly incidental to arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, if the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further.
It is important to pause and consider the implications of these statements. Let us assume police arrest a person for impaired driving. The person is carrying illegal weapons in the trunk of his car. Police impound the vehicle. Based on the"objective circumstances", there does not appear to be a "safety" issue and a search of the trunk is not "reasonably" related to the impaired driving arrest. Police cannot obtain a search warrant because they have no "reasonable and probable" grounds to believe the person is carrying weapons. According to the majority’s conception of section 8 in Caslake, it would appear that a trunkload of weapons might sit in police custody with impunity.
The dissenting judgment appears to disclose a greater appreciation for the reality that police are regularly confronted with [para. 43]:
I agree with the trial judge. The power to search incidentally to arrest draws its authority from the arrest itself. It is not necessary to independently establish reasonable and probable grounds to conduct a search incidental to arrest.... Therefore, there was no onus on the Crown to establish at trial that Constable Boyle subjectively turned his mind to whether he was properly exercising his power to search incidentally to arrest.
It should be noted that in this case, the majority decided not to exclude the evidence. This is rather cold comfort, however, as all police are now under an obligation to act lawfully and in accordance with this judgment. Like many Supreme Court of Canada judgments under the Charter, Caslake fetters Canadian police even further than the most expansive and libertarian judgments of the United States Supreme Court.
e. R. v. Vu, [1998] B.C.J. No. 987 (B.C.S.C.)
The recent decision of the British Columbia Supreme Court in Vu discloses disquieting evidence of the profound effect of the Supreme Court of Canada’s majority judgments on our criminal justice system.
The accused Vu was charged with trafficking in cocaine. In that case, a plain clothes officer who was investigating the accused knocked on his door, made a purchase and returned to detachment to describe the accused, including facialfeatures and clothing. Upon obtaining that description, uniformed police officers attended the apartment to confirm the identification. The accused, who was known to one of the officers, opened the door. The officers stepped 2 feet into the apartment. The officers spoke to the accused about other matters while the officer took notes confirming the undercover officer’s description. They then left the premises.
Based on its understanding of Supreme Court jurisprudence, the Court held that the police were conducting a "search" when they attended the apartment and began to question him and confirmed his description with their visual senses. Because the search was conducted without a warrant, the search was unreasonable. The Court then excluded the evidence of the police’s observations by concluding that the police conscripted the accused to give evidence about himself when he was forced to answer his door: para. 42. The Court described the violation as "willful and flagrant in the extreme".
e. Other cases
The 5 cases reported in this paper are only a few examples of the expansive section 8 jurisprudence of the Supreme Court of Canada. Numerous other examples could have been cited both under section 8 (e.g., R. v. Colarusso, [1994] 1 S.C.R. 20 -5-4 split - "unreasonable search" where coroner properly obtains blood and urine samples under provincial statute, asks police to courier the samples to the lab, and the results of those samples are led in a criminal trial) and other sections of the Charter such as R. v. Hebert, [1990] 2 S.C.R. 151 (s. 7: police no longer allowed to engage in practice expressly approved of prior to Charter of placing plain clothes officer in cell with accused and determining whether accused would make voluntary statement admitting to crime, because of accused’s "privilege against self-incrimination") and R. v. Stinchcombe, [1991] 3 S.C.R. 326 (s. 7:Crown required to make full disclosure prior to trial, with no corresponding obligation on defence to disclose).
Also worthy of mention are two cases dealing with the "right to counsel" contained in s. 10(b) of the Charter which guarantees any arrested or accused person, upon arrest or detention, "the right to retain and instruct counsel without delay and to be informed of that right. In R. v. Bartle, [1994] 3 S.C.R. 173 the Court held that the accused’s Charter rights were breached by the following warning:
You have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer that you wish. You also have the right to free legal advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance.
Professor Hogg describes this case as follows (p. 47-8):
The suspect to whom this warning was twice given, once at the roadside and once at the police station, said no, that he did not want to call a lawyer. He was given the breathalyzer test, which he failed. The Supreme Court of Canada held that the suspect’s s. 10(b) rights had been infringed, and that the breathalyzer test was inadmissible. Why? Because the police officer had not included in the warning the telephone number by which free duty counsel could be contacted at night. It was immaterial that the suspect showed no interest in contacting counsel, or that the advice of counsel could do nothing but confirm the statutory duty to provide the breath sample. The telephone number had to be provided, not merely to assist a suspect who indicated an interest in contacting counsel, (which is all that had been decided in earlier cases), but as part of the warning to every detained person [in a province where the service was available]. After all, the Court pointed out, it was possible that the availability of the telephone number might encourage the suspect to decide to contact counsel, and that would be a good thing.
Feeney provides yet another example of how expansively the right to counsel has been interpreted. It will be recalled in that in that case, the police walked into the trailer, woke the accused, asked him to move to the light and then read the s. 10(b) caution. The majority held as follows [para. 57]:
...the appellant was not given adequate opportunity to secure counsel. Hewas not given access to a telephone before being questioned; the police gave him the caution in the trailer, where no telephone existed. The police simply asked him whether he understood his rights, to which he replied "Of course, do you think I am illiterate?" or words to that effect, and then proceeded to ask him questions about the blood on his shirt and his shoes. The appellant’s s. 10(b) rights were violated by these police actions.
The dissent disagreed. They held that the police are not obliged to read the accused his s. 10(b) rights the instant he is detained [para. 182]:
The police must be permitted latitude to assess and gain control of the situation and determine whether a potentially dangerous situation exists... Here, the appellant was being sought for a very serious and violent crime, and there was no way for the officer entering the premises to know how the appellant might have reacted. In addition the officer was walking into a dark room and the appellant was sleeping. Surely the officer was not supposed to read the appellant his rights while he was asleep....
f. The profound need for Parliament to engage in a meaningful "dialogue" with the Courts
If the foregoing cases prove anything, it is that the majority judgments are "right" only because of the particular majority that happened to have pronounced them, not because the majority judgments is objectively superior to the dissenting view. Canada would be no less a free and democratic society if the dissenting views in all these cases prevailed. Indeed, most Canadians would agree that our criminal justice system would be more balanced and sensible had the dissenting judgments in these cases prevailed.
Those who argue that use of the notwithstanding clause to address judicial excesses are interested in "taking people’s rights away" are engaging in disingenuous and simplistic rhetoric. The real question raised by Charter cases is who should have the final word in defining those rights and balancing those competing interests. Thus far, legislators have almost uniformly failed in theirresponsibility to answer the latter question despite the existence of a notwithstanding clause that was included in the Charter for precisely this purpose.
The City of Vancouver believes that the radical changes the Supreme Court of Canada has made to the law of criminal procedure fail to strike a fair and proper balance between the interests of all Canadians in liberty, security and essential law enforcement. The interests of justice and truth which are so central to preserving the reputation of the justice system have been suppressed at the expense of an unrealistic and extreme Charter interpretations.
IV. Exclusion of evidence
The framers of the Charter were well aware of the unhappy and undesirable American experience whereby evidence which Courts deemed to be "illegally obtained" was automatically excluded. The American exclusionary rule - an invention of the Courts - has always been a source of intense debate in that country. Professor Wigmore criticized the exclusionary rule by noting that "our way of enforcing the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else": Wigmore on Evidence (1961), Vol. 8, p. 31.
Professor Wigmore’s point is well taken. The fact that a police officer breaches a guilty man’s "rights" does not erase that person’s guilt for the crime he committed. A murderer is no less a murderer because a police officer failed to read the murderer his right to counsel. The community has an interest both in upholding the Constitution and in bringing guilty persons to justice for their crimes. Rather than finding ways to vindicate both interests directly, Americans "let the criminal go free because the constable blundered". To most people, this is a bizarre, unjust and unacceptable outcome. It does little to enhance anyone’s confidence in the criminal justice system. It is also debatable whether the American exclusionary rule has actually promoted, rather than deterred police misconduct in that country. It turns the criminal justice system into a bizarre and at times, macabre, game.
The Charter was enacted in the wake of the Americans’ experience with their exclusionary rule, and in the context of our historic use of the English common law rule that evidence obtained by illegal means is admissible if it is relevant and reliable. In other words, Canada’s approach proceeded on the basis that, whatever consequences might otherwise flow from illegal conduct in obtaining evidence, reliable and truthful evidence should be admitted as long as it was voluntary under common law principles.
The drafters of the Charter were much more inclined to the Canadian model than they were to the American. Because they wanted to avoid the risk that Canadian judges might manufacture an absolute exclusionary rule on the American model, section 24(2) of the enacted to specifically deal with the exclusion of evidence. It provides as follows:
24(2) Where .... a Court concludes that evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
The clear intent of s. 24(2) was to make the exclusion of evidence the exception rather than the rule. The section is based on the very premise that evidence would sometimes be obtained in breach of the Charter. Accepting this premise, the framers made the policy decision that illegally obtained evidence should nonetheless be admitted to prove the truth of the offences except where a person establishes that its admission would "bring the administration of justice into disrepute". The language that was used - "bring the administration of justice into disrepute" - is very serious language indeed. It suggests a very high standard to be met before evidence would be excluded. It also suggests that thestandards of the larger community of reasonable persons (rather than the sensibilities of law professors or the defence bar) ought to weigh heavily in determining what would bring the administration of justice into disrepute.
As with all other Charter provisions, however, the judiciary have been the de facto final arbiters of s. 24(2). Canadians will therefore not be surprised to learn that, in line with the approach it has taken to the rest of the Charter, the judiciary’s interpretation of s. 24(2) of the Charter reflects a much more rigid, absolutist and Americanized approach to excluding evidence than the Charter’s framers would ever have envisioned. The byzantine superstructure which presently governs s. 24(2) may fairly be summarized as follows:
1. In determining whether admitting evidence would bring the administration of justice into disrepute, three sets of factors must be considered: (a) the effect of admitting the evidence on the fairness of the trial; (b) the seriousness of the Charter violation: was it deliberate or flagrant, inadvertent or technical, were the police acting in urgent circumstances, etc.; and (c) the effect on the repute of the administration of justice of excluding the evidence.
2. The first set of factors, dealing with "trial fairness", requires the Court to categorize evidence as "conscriptive" or "non-conscriptive". Evidence will be "conscriptive" when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples. Evidence will be "non-conscriptive" if the accused was not compelled to participate in the creation or discovery of the evidence -i.e., the evidence existed independently of the Charter breach in a form usable by the State.
3. If evidence is conscriptive, its admission will render the trial unfair unless the Crown proves that the evidence would have been discovered by lawful alternative means - where an independent source exists or the discovery was inevitable. If the Crown fails in this task, the evidence will be automatically excluded regardless of factors (b) and (c) because "an unfair trial will necessarily bring the administration of justice into disrepute".
4. If evidence is non-conscriptive, its admission will not render the trial unfair and the Court must go on to consider factors (b) and (c) of thetest.
5. Factor (b) deals with the "seriousness of the violation". The Courts have held that while police can commit good faith Charter violations, ignorance of the law is no excuse. Therefore, where the police have acted contrary to a Charter judgment that changes the law, but which they ought to have known, the violation will be regarded as "serious".
6. Factor (c) deals with the effect of excluding the evidence on the administration of justice. In this regard, the majority of the Court has had little regard for overwhelming public antipathy to the exclusion of evidence. Indeed, in Feeney, the majority had little sympathy for the proposition that Feeney would walk away free from a brutal murder [para. 83]:
The serious disregard for the appellant’s Charter rights in the case at bar suggests that the admission of the evidence would bring greater harm to the repute of the administration of justice than its exclusion..... If the exclusion of the evidence is likely to result in an acquittal of the accused as suggested by L’Heureux-Dube J. in her reasons, then the Crown is deprived of a conviction based on illegally obtained evidence. Any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society which is governed by the rule of law.
The language of this latter passage is noteworthy. The 5 judge majority speaks of "serious disregard" for Feeney’s Charter rights, despite the views of the 4 dissenting judges and the 4 lower Court justices rejecting this position. The majority further asserts that any price to society occasioned by the loss of a conviction is fully justified, despite the clear language of s. 24(2) of the Charter which categorically rejects this ideological world view.
The violence done to language and intent of s. 24(2) is reflected not only in the foregoing passage from Feeney, but in the statement of the test itself. The position that "conscriptive" evidence should be excluded "quasi-automatically"(R. v. Stillman, supra, para. 241) because it affects the "fairness of the trial" is a pure judicial invention; it is impossible to fairly reconcile with the language and intent of section 24(2). The matter was put somewhat more diplomatically by McLachlin J. in her dissenting judgment in Stillman, supra, at paras. 250 and 258:
...the view expressed in some cases that any evidence which affects the fairness of the trial must be excluded under s. 24(2) should be resisted. First, it runs counter to the spirit and wording of s. 24(2), which requires judges in all cases to balance all factors that may affect the repute of the administration of justice, and elevates the factor of trial unfairness to a dominant and in many cases conclusive status. Second, it rests on an expanded and, in my view, erroneous concept of self-incrimination or conscription which equates any non-consensual participation by or use of the accused’s body in evidence gathering with trial unfairness. Third, it erroneously assumes that anything that affects trial fairness automatically renders the trial so fundamentally unfair that other factors can never outweigh the unfairness, with the result that it becomes unnecessary to consider the other factors....
The approach that I suggest ... preserves the consideration of "all the circumstances" and the balancing of factors for and against admission required by s. 24(2). It avoids the automatic exclusionary rule eschewed by the framers of the Charter. And, in my respectful view, it deals with the problem of trial unfairness in a more flexible and useful way than the automatic exclusionary approach advocated by the majority. The approach of the majority, as noted earlier, is a blunt instrument incapable of discriminating between degrees of trial unfairness.
L’Heureux-Dube J. was even more direct in her dissenting judgment in R. v Burlingham, [1995] 2 S.C.R. 206. In her view, the only circumstance in which anything approaching "absolute" exclusion should be permissible is where the evidence is unreliable and risks convicting an innocent person. She also offered the following words of wisdom regard the public’s concerns about the repute of the criminal justice system caused by the exclusion of evidence [para. 74]:
...there is a material gap between public opinion and this Court regarding how those factors [regarding the exclusion of evidence] should be applied... On the one hand, I am in basic agreement with the concernexpressed in Collins that "the Charter is designed to protect the accused from the majority, so the enforcement of the Charter must also not be left to the majority". I am also sensitive to the fact that public opinion surveys, no matter how carefully culled, are rarely without their weaknesses. On the other hand, however, given that the express purpose of s. 24(2) is to maintain the repute of the justice system, I believe that we also cannot dismiss them completely out of hand. A periodic "reality check" is both healthy and necessary in order to ensure that the discretion to exclude evidence under s. 24(2) is exercised in conformity to long term community values.
It is impossible to resist the conclusion that the Supreme Court of Canada has seriously distorted the language and intent of s. 24(2). Not surprisingly, the result has been Court decisions which have seriously harmed the reputation of justice system. The City of Vancouver believes that the time has come for the public to find its voice, and through its elected representatives, to offer a reality check regarding the judiciary’s stewardship of a Charter that belongs to us all.
With regard to the exclusion of evidence, this means that Parliament ought to give serious considerations to enacting a set of more reasonable statutory exclusionary principles, utilizing section 33 to undo the harmful effects of the Supreme Court of Canada’s s. 24(2) jurisprudence. Parliament has the right and the duty to act, particularly where as here, such legislation is necessary to bring Canadian law back in line with what Canadians "signed up for" when s. 24(2) was enacted.
V. Sentencing
Few subjects in our criminal justice system spark as much public attention as the sentences meted out to offenders who have been convicted of crime.
The theory underlying Canadian sentencing reflects a unique mixture of statute law, constitutional law and judicial discretion. Insofar as statute law is concerned, Parliament creates offences in the Criminal Code and the Controlled Drugs and Substances Act ("CDSA"). For offences where imprisonment is available, these statutes establish maximum terms of incarceration in accordance with the relative severity of the crime. The current structure of these statutes staggers maximum sentences for the full range of offences at numerical benchmarks ranging from 6 months to life imprisonment.
In a few instances, mandatory minimum sentences are established. For example, use of a firearm while committing an indictable offence carries a mandatory minimum sentence of imprisonment for one year consecutive to any other punishment (Criminal Code, s. 85), and a mandatory minimum of four years imprisonment where the firearm was used in the commission of offences such as manslaughter, sexual assault or kidnapping: Criminal Code, ss. 236, 272, 279. Impaired driving carries a mandatory minimum sentence of 14 days for a second offence, and 90 days for each subsequent offence: s. 255. First and second degree require mandatory life imprisonment: s. 235.
The maximum and minimum sentences reflected in the Criminal Code and the CDSA are not, by and large, out of line with Canadians’ expectations regarding just and proper punishment for crime. The frustration and disbelief sometimes expressed by Canadians regarding sentencing outcomes arise because of 3 factors that exist apart from these Criminal Code provisions: (a) the Courts’ interpretation of Charter provisions regarding "cruel and unusual treatment or punishment" which has made it exceedingly difficult to establish minimum sentences for serious crimes; (b) exercises of judicial discretion which often appear insufficient to address the gravity of particular crimes and which are often inexplicably inconsistent with one another; and (c) the operation of parole and remission provisions which grants parole eligibility even to serious offenders after they have served a mere 1/3 of their custodial sentence, and which entitle them torelease on mandatory supervision after serving 2/3 of their sentence.
a. Constitutional Standards
Section 12 of the Charter confers on everyone "the right not to be subjected to any cruel and unusual treatment or punishment". This phrase did not introduce a novel concept into Canadian law. The phrase had also appeared in the Canadian Bill of Rights and was defined as punishment which "is so excessive as to outrage standards of decency": R. v. Miller and Cockreill, [1977] 2 S.C.R. 680 at p. 688.
To a majority of Canadians, the notion that certain crimes should carry minimum sentences regardless of the personal circumstances of the person convicted of the offence, does not outrage standards of decency. As noted above, we have made a decision as a society that first degree murder should carry a minimum sentence of life imprisonment without possibility of parole for 25 years. Much lower minimum sentences are in place for offences in which firearms have been used.
There are, however, other types of offences which cry out for mandatory minimum sentences. Of particular concern to the City of Vancouver and other local governments are offences relating to trafficking and importing illegal drugs. The acts of persons who actively participate in the importation and trafficking of drugs, and the direct and indirect effects of those acts, have had a profound effect on the harms caused to our children, our property and our community. Quite apart from the deterrent effect that mandatory minimum sentences would inevitably have on many persons engaged in these destructive actions, such sentences would also properly convey society’s collective denunciation and revulsion toward these acts. Minimum sentences for the most serious drug offences would not remove all the discretion of sentencing judges; they would however establish a thresholdbelow which the sentence must not fall.
Prior to 1987, Canada did in fact have a law which imposed a minimum sentence of 7 years for importing narcotics into Canada. The provision had been enacted in 1960 after careful and extensive consideration of minimum sentences, which had been in place regarding drug offences since 1920: Opium and Drug Narcotic Act. However, this provision was struck down by the Supreme Court of Canada in R. v. Smith, [1987] 1 S.C.R. 145. In that case, the defendant had been found guilty of importing a substantial amount of cocaine into Canada and had been sentenced to 8 years imprisonment - more than the statutory minimum. The majority of the Court held that the mandatory minimum sentence was unconstitutional.
The majority did not strike down the sentence provision because it was inappropriate in Smith’s case. Nor did they strike it down because it was inappropriate in any other case ever brought before the Courts. The majority struck it down because of the purely hypothetical possibility that a young person coming across the border with his first "joint of grass" would be caught by the law, and that subjecting such a person to the minimum 7 years would be "shocking". The fact that this has never happened in the history of Canadian law, and that in practice people in this rare situation were always charged with lesser offences, did not prevent the Court from striking down the entire provision.
As properly noted by Mr. Justice McIntyre in his dissenting judgment in Smith, the fashion in which this section operates in the real world is not such as to outrage the public conscience or degrade human dignity. Even in the unreal circumstance where a person is charged with the offence of importing for a relatively innocuous action, persons convicted of the minimum sentence are eligible for day parole after only 14 months in prison. Moreover, the minimal risk that the hypothetical person described by the majority would ever charged with importing "a single joint of grass" must be weighed against the much more serious and palpable harms caused by striking down this provision for all offenders who commit this offence. Thoseharms lie in a return to completely individualized sentencing which experience has proved gives rise to "outrageous disparities in the sentences that judges impose in individual cases": Hogg, supra, p. 50-4. Mr. Justice McIntyre put the matter eloquently in Smith:
It is true, in general, that when a judge imposes a sentence, he considers the nature and gravity of the offence, the circumstances in which it was committed and the character and criminal history of the offender, all with an eye to the primary purposes of punishment: rehabilitation, deterrence, incapacitation and retribution. But, as I noted earlier, sentencing is an imprecise procedure and there will always be a wide range of appropriate sentences. For some offences, the protection of the public will be paramount and little weight will be given to the possibility of rehabilitating the offender. On other occasions, the gravity of the offence alone may dictate that a severe punishment be imposed as, for example, in the case of first degree murder. There will still be other offences and circumstances where the punishment will be based primarily upon the possibility of rehabilitation. In the setting the minimum sentence at seven years for importing narcotics, Parliament has determined that the gravity of the offence, the protection of the public and the suppression of the drug trade are of paramount importance and that, consequently, the circumstances of the offender should be given relatively less weight. This legislative procedure does not transform the sentencing procedure into an arbitrary process.
Persons who live off the avails of money derived from the importation and marketing of narcotics are responsible for profound and prolific harms to person and property. As part of any comprehensive strategy for dealing with these harms, we must as a society have the right to establish a minimum sentence which properly reflects society’s abhorrence of these actions. If the Courts have deformed our constitutional jurisprudence by launching broadside attacks on statutory provisions based on scenarios with no basis in practical fact, legislators have a responsibility to reform the law. The re-establishment of mandatory minimum sentences for the importation and trafficking in controlled substances is oneimportant area in which these reforms should take place. Section 33 of the Charter is available to achieve this reform, and it ought to be used.
b. Judicial discretion in sentencing
Within the context of the maximum penalties established by Parliament for offences, the Courts themselves have recognized that "The formulation of a sentencing order is a profoundly subjective process...": R. v. Shropshire, [1995] 4 S.C.R. 227 at para. 46. From the Courts’ perspective, this discretion is to be encouraged since it allows Courts to impose very high fixed term sentences of up to 25 years duration and beyond for serious crimes, while ensuring those sentences are not unduly excessive: R. v. C.A.M., [1996] 1 S.C.R. 500.
The entire system of sentencing is based on the notion that the primary responsibility for sentencing should fall on the initial sentencing judge. The theory is that the sentencing judge, who has heard the witnesses and the submissions, and who has served on the "front lines" of the criminal justice system, is in the best position to make sentencing determinations: R. v. McDonnell, [1997] 1 S.C.R. 948. As noted by the Supreme Court of Canada in C.A.M., supra, at paras. 91 and 92:
Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at the same time taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly....
...[T]here is no such thing as a uniform sentence for a particular crime.... Sentencing is an inherently individualized process, and the search for a particular appropriate sentence for a similar offender and asimilar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular crime should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
Despite the Court’s recognition that the needs and conditions of Canadian communities are important considerations in sentencing, some judges continue to resist the notion that the community’s perspectives and expectations have any valid role to play in the sentencing process. A particularly stark example of this view is the dissenting judgment in R. v. Grimsson, [1997] B.C.J. No. 2815 (C.A.), where a Court of Appeal justice commented as follows on a trial judge’s statement that his sentencing decision in a murder case should have regard to "the public concern for the sanctity of life and the public concern of the Courts not accepting their responsibility in circumstances such as these":
In my view, the insistent references to the judge’s perception of public opinion shows that the judge gave an entirely inappropriate weight to that factor. It is a factor that I do not think should be dwelt upon in sentencing reasons. The public press records many demands for sentencing savagery.
While this was not a majority statement, any judicial suggestion that reported public concern about sentencing is based on a desire for "savagery" is unfortunate. The underlying assumption is that public concern about unduly lenient sentences is based on ignorance and lack of principle. One would think that the inherent subjectivity in sentencing would in fact invite judicial humility and an openness to integrate widespread dissatisfaction sentencing decisions. Concerns about judicial decisions which impose sentences of only 9 months incarceration for trafficking cocaine and heroin are hardly based on adesire for "savagery": R. v. Vu, [1998] B.C.J. No. 249 (C.A.); R. v. Tran, [1998] B.C.J. No. 652 (C.A.). The community also has a right to be legitimately concerned about judicial decisions granting a mere fine and one year probation for persons convicted of carrying on marijuana grow operation: R. v. Smith, [1997] B.C.J. No. 2366 (S.C.). As recently recognized by the Alberta Court of Appeal: "What is the effect of a sentence not just and appropriate, which trivializes the harm done to the victim, or fails to reflect the offender’s culpability by minimizing the consequences to him? It breeds disrespect for the law": R. v. Brady, [1998] A.J. No. 39 (Alta. C.A.) at para. 21.
In the Smith case (cultivation for commercial purposes), the B.C. Supreme Court found the Crown’s "get tough" approach to run afoul of Parliament’s intentions in the Criminal Code. The Court emphasized the "expense" of jail and expressed concern about the deterrent effect of incarceration. The Court relied on decisions holding that denunciation could be achieved by a conditional sentence, and that it was "wrong" to consider a conditional sentence as being a lenient sentence. This now appears to be the view of the British Columbia Court of Appeal, where the Court held that conditional sentences under the Criminal Code are available for crimes including drug trafficking and sexual assault of children: R. v. R.N.S., [1997] B.C.J. No. 2776 (C.A.). Other judges disagree. For example, in R. v. Brady, supra, the Alberta Court of Appeal made the obvious point that most conditional sentences are much more lenient than prison [para. 48]:
In theory, maybe a conditional sentence could be very restrictive. One example sometimes offered is called "house arrest". Neither Mr. Brady’s case nor any of the cases argued with it contained any such terms. And even if they did, we question the degree of house arrest’s severity and hence its deterrent or denunciatory value. For hundreds of years, Anglo-Canadian law has decreed that a man’s home is his castle. It is not his prison. What is staying in the comfort of one’s own home, sleeping in one’s own bed, remaining with one’s family, phoning, watching T.V, listening to the radio or stereo, and reading whatever one wants? In essence, it is carrying on one’s life, except possibly for working. We cannot equate that with actual imprisonment. Saying that such a conditional sentence is tantamount toimprisonment does not make it so. The citizens of this country would never equate house arrest with prison. And with good reason.
The fact of the matter is that, rather than clarifying the law, Parliament’s 1996 amendments to the Criminal Code’s sentencing provisions have only confused matters. They have caused judges in this country to impose even more lenient sentences for crime than they have in the past. They have caused members of the public to feel less safe and secure. They have not bred respect for the criminal law process. The bias against incarceration reflected in some of the recent judgments appears to be based on a rather odd social science notion that if you cannot prove that incarceration "reduces crime", it should be avoided. There are three fatal difficulties with this argument. First, we do not imprison people solely to affect crime statistics. In many cases, imprisonment is the only punishment society can impose which satisfies the compelling objectives of denunication and retribution for an offender’s actions which profoundly harm his victims and the community. Secondly, the same "experts" who argue that imprisonment does not reduce crime suggest that the crime rate is in fact decreasing in Canada, while steadfastly refusing to acknowledge the general deterrent effect of incarceration: see Senate Committee Report excerpted in R. v. Ursel, [1997] B.C.J. No. 1853 (C.A.) at para. 34. Finally, on an individual basis, there is every reason to believe that imprisonment has stopped many offenders from committing future crimes.
In R. v. Ursel, supra, at para. 68, the Court stated that if Parliament had intended to exclude any offences from the conditional sentence provisions of the Criminal Code, "it could have done so in clear language". The City of Vancouver believes that Parliament should address the deficiencies in legislative language. The same legislative language should find creative ways to structure judicialdiscretion so that the inconsistency in judicial sentencing can be minimized as far as reasonably possible.
There is clearly a great deal of room in the public debate over sentencing for the consideration of alternatives to imprisonment, including alternative notions relating to "restorative justice". The debate must be founded on the values of justice, fairness and respect for the community of persons who believe in and abide by the law. For serious offences such as narcotics trafficking which have such tragic and far-reaching consequences, this means that Parliament must first and foremost send the judiciary a clear message that Canadians expect the imposition of punishment which engenders respect for the community and for the administration of justice.
c. The operation of parole and remission provisions
Over and above the widespread dissatisfaction about sentencing caused by unrealistic constitutional standards and highly subjective exercises of judicial discretion, Canadians’ concerns are compounded by the reality that in those cases in which a criminal charge is laid, a conviction is entered and a custodial sentence is imposed, the sentence imposed rarely means what it says.
With the exception of the offence of first degree murder, a custodial sentence for a criminal or drug offence usually means that an offender will remain in prison for only a small portion of the sentence established by the Court. Under the Corrections and Conditional Release Act, a person sentenced to a numerical term of imprisonment (not life) becomes eligible to apply for full parole after serving the lesser of one third of the sentence or 7 years, counted from the date the sentence is imposed. A person sentenced to life imprisonment for a non-murder offence becomes eligible for full parole after serving 7 years (counted from the day of arrest) unless the Court extends the period of parole ineligibility up to 10 years: s. 743.6. After two thirds of their sentence has been served, offenders qualify for remission of their sentence.
We do not of course suggest that Parliament should do away with the concepts of parole and remission. We also recognize that, in law, parole is a portion of the Court’s sentence. Parole and remission are both concepts based on valid objectives to encourage offenders to behave in prison and to reintegrate into society when their prison term is over. At the same time, there is an overriding, compelling and instinctive recognition by right thinking Canadians that a 10 year jail sentence - a sentence reserved for very serious crimes - should not equal 3 years in jail. This state of affairs reflects a serious lack of proportionality, and once again speaks compellingly to the need to rebalance the criminal justice system.
VI. Section 33 of the Charter
Section 33 of the Charter reads as follows:
33(1) Parliament or a legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of the Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provisions of the Charter referred to in the declarations.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier day as may be specified in the declaration.
(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
As can be seen from the text of s. 33, not all Charter rights can be overridden by s. 33. Legislation cannot override the right to vote, mobility rights, language rights or the sexual equality clause. However, s. 33 may be used to override judicial decisions which strike unacceptable balances involving freedoms such as expression and association, and the rights that have been discussed above relating to the subject matter of criminal procedure. To be effective, the override must be passed in legislation. Thereafter, it is only effective for a maximum of five years before it must be renewed.
The notwithstanding clause was not in any of the earlier versions of the Charter. It was the crucial element of the federal-provincial agreement that secured the consent of the 9 provinces which had previously opposed the Charter on the ground that it unduly limited legislative sovereignty. Section 33 preserved that sovereignty in the areas most important to legislators. It was a fundamentally important safety valve to ensure that our country did not proceed down the same destructive constitutional path as our American neighbours. As described by Professor Russell, "Standing Up for Notwithstanding" (1991), 20 Alta. L. Rev. 293 at p. 298:
Absent a Canadian-style legislative override, Court-packing and Court-bashing are the devices to which democratic leaders are most likely to resort when faced with judicial interpretations of the constitution they consider to be seriously unjust or harmful. These devices may yield relatively quick results as was the case with Roosevelt’s threat to pack the U.S. Supreme Court, or they may work much more slowly, as has been the case with Republican Presidents to reverse certain decisions of the Warren Court. In either the case of court-packing or court-bashing, involving as they do the application of raw majoritarian power to the judicial branch, would seem less appropriate than legislative debate and discussion for challenging judicial decisions. The legislative override has merit, when properly used, of applying reasoned discussion in a publicly accountable forum to the great issues of justice and public well-being at stake.
As this paper has repeatedly emphasized, only the most simplistic or biased observer would regard the use of the notwithstanding clause as a device to take away the rights of Canadians. This is not what the clause is about, nor is it whatthe clause was intended to be used for. The existence of the clause recognizes that civilized society is all about balance, and that judges are far from infallible in striking that balance for the rest of us. On that point, the review of the case law canvassed in this paper speaks for itself.
Once it is admitted that contemporary Charter issues (particularly those in relation to criminal procedure) are not about "majority oppression", that the meaning and scope of Charter rights is unclear and subjective, that the proper weight to be assigned to competing values is a fundamental policy question in which we all have a stake and that judges profoundly disagree among themselves on these very questions, the question must inevitably arise as to who should have the final say on where the line is drawn between competing values. The answer under the Canadian Constitution, is the people. The great safeguard against judicial excess is the check of periodic and informed democratic review.
There are those who are cynical about the prospect of governments ever using the notwithstanding clause after the Levesque Government’s controversial use of the clause in 1982, and the Bourassa Government’s decision to invoke the clause in relation to its French only sign law. The argument is that these uses of s. 33 have made it politically impractical to use s. 33 in the future: Reid, "Penumbras for the People: Placing Judicial Supremacy Under Popular Control", ch. 10 in Rethinking the Constitution, supra, at p. 201. The City of Vancouver believes that this argument is deeply flawed. Arguing that the notwithstanding clause should not be used because it was used to support a bad law is like saying that the legislative process itself should not be used because it produced a bad law. The evil is not in the use of the notwithstanding clause, it is in the substance of what was done with it. The very point of the exercise is that s. 33 allows Canadians to pass good laws where Courts have failed. The good is a question forthe entire community.
Despite the respect which the judiciary has earned in our system of government, it is a profound mistake for Canadians to think that a decision of the majority of the Supreme Court of Canada is always "right". As others have noted (see Russell, supra), judges are human beings. They are not infallible. They have their biases and their blind spots and they are sometimes isolated and poorly informed about the effect of their decisions. If the judges have the last word on all political or criminal justice issues - that is, if we allow them to - we deprive ourselves of the ability to make rational, wise and balanced decisions in the best traditions of a democratic community. In the end, we deprive ourselves of the ability, as citizens, to do the right thing.
VII. Conclusion
The City of Vancouver believes that the time is ripe for Canadians and their political leaders to engage in a comprehensive evaluation of our system of criminal justice in light of the changes occasioned by the Charter jurisprudence of the Supreme Court of Canada. The City of Vancouver believes that a fair-minded review of that jurisprudence discloses numerous areas which cry out for Parliament to redress the balance between liberty, effective law enforcement and security.
The City of Vancouver believes that Parliament, which has the constitutional responsibility to enact criminal law and procedure, has a duty to advise Canadians about exactly how criminal procedure has changed under the stewardship of the judiciary, and to consult with Canadians regarding their satisfaction with these changes. The City of Vancouver believes any such consultation will disclose overwhelming support for the idea of allowing Canadians to reclaim their voice and to redress the balance that is so profoundly wanting in so many areas of criminal law and procedure.
The framers of the Charter demonstrated the wisdom and foresight to anticipate the very difficulties in which we find ourselves today. Based on their abiding beliefin democracy and their trust in the fairness, decency and good judgment of Canadians, the framers of the Charter specifically provided us with s. 33 as the means to restore balance to our justice system. Parliament must now carry out its duty to Canadians by showing the courage and political will to carry out this fundamentally important enterprise.
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