A Standing Invitation

Today the Québec Court of Appeal dismissed the federal government’s appeal from the Superior Court’s decision in Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863, which granted the Québec Bar public interest standing to challenge the constitutionality of the mandatory minimum sentences ― all 94 of them ― introduced by the so-called Safe Streets and Communities Act, SC 2012 c 1, better known as Bill C-10. The decision came from the bench at the end of this morning’s hearing, with reasons to follow. I was there, however, so I think I’m in a position to explain the (likely) grounds for the Court’s decision right away.

The federal government’s first, and less important, argument was that Justice Roy, who granted the Bar public interest standing, was to wrong to accept that it had a genuine interest in the issue. The government pointed out that the Bar failed to intervene in any of the multiple ongoing challenges to mandatory minimum sentences. It also asserted that ― unlike the NGO that was granted public interest standing in the Supreme Court’s most important recent case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, it wasn’t an “umbrella,” a representative for the people actually affected by the impugned legislation.

The Bar countered that it had a long-standing interest in matters related to the legal and judicial system, and that this challenge was in furtherance of that interest. The Court of Appeal, presumably, agreed.

The government’s main focus was on Justice Roy’s conclusion that the Bar’s challenge was a reasonable and effective way to get the issues it raised before the courts. Having a credible and well-resourced litigant willing to take on a case is not enough. Downtown Eastside, in the government’s view, stood for the proposition that of a litigant with personal standing could reasonably be expected to mount an equally or more effective challenge, public interest standing should (normally) not be granted. Unlike on the facts of Downtown Eastside, such was the case here. The accused who were potentially subject to the mandatory minimum sentences at issue had every incentive in the world to challenge them. Accused persons had challenged other mandatory minimums all the way up to the Supreme Court in the past, and were already challenging those introduced by C-10. Unlike with the prostitution-related provisions at issue in Downtown Eastside, no person was harmed by the the mandatory minimum sentences before the were imposed on them by courts, so there was no urgency to consider their constitutionality at once.

The government argued that the Bar’s challenge was seriously flawed. For one thing, it would have to be argued in a factual vacuum. The Bar proposed to use available judicial decisions as “reasonable hypothetical” examples of concrete situations to which the mandatory minimums might be applied to fill it up, to  but the Supreme Court has cautioned against such practices. And for another, the case was going to turn into an aggregate of 94 individual challenges to the various mandatory minimums created by C-10, and would be unmanageable, and thus not a good use of judicial resources.

The Court, however, was of the view that there was something more to the Bar’s case than an assemblage of challenges to individual mandatory minimums. These were “the trees,” but there was also “the forest” ― the Bar’s claim that Parliament interfered with judicial discretion and even judicial independence. The Bar, the judges suggested, was better placed than any individual litigant to argue this claim. If Parliament were to enact American-style sentencing guidelines, who could challenge them? Surely not an individual accused?

The federal government tried countering that this issue would be just the tip of the iceberg, because “99%” of the time of the court that would consider the case on the merits would be devoted to the challenges to the individual provisions. Switching metaphors, it said that the issue of judicial powers would be “Trojan horse” concealing the “soldiers” of these separate challenges under s. 12 of the Charter. Besides, accused persons could well raise the judicial independence issue, since it is another way, in addition to s. 12, in which the law under which they could be sentenced might be declared unconstitutional. Sure an individual could not fell every “tree,” by attacking provisions under which he is not accused, but he can still burn down the “forest.” If the Bar wants to make this argument, it can always intervene in an existing case. It just hasn’t done so. Increasingly desperate in the face of the bench’s skepticism, the government added that we should not be impressed by the “aura” surrounding the Bar, that we didn’t even know how much the Bar was spending on this challenge, and that many of its members were opposed.

To no avail. The judges obviously thought that the Bar’s argument that the introduction of multiple mandatory minimums amounted to unconstitutional interference with judicial independence or separation of powers, was a serious one, and was concerned that it would not be made if the Bar were not allowed to bring it. And the existence of one serious question on which the Bar could have standing was enough to let the whole challenge go ahead. Any issues arising from its scope, the judges suggested, can be addressed through case-management.

The government tried to retreat to a subsidiary position, arguing that even if the Court upheld the decision to grant the Bar standing, it could and should limit standing to the “forest” issue, that of judicial independence. The Bar demurred, saying that this possibility had not been raised at first instance, and the Court, always skeptical, did not take up the suggestion.

Those of you who recall my earlier posts on this case will not be surprised to learn that I think this is a very bad decision. As I wrote here, the Bar’s challenge is a distortion of the nature of judicial review of legislation in the Canadian legal system. During its argument (very brief, at the Court’s request), the Bar insisted that its challenge aimed at the way the mandatory minimums were enacted by C-10 ― all at once and without studies. As a matter of political morality, I fully agree that this way of doing things is a shocking violation of what Jeremy Waldron has called “legislative due process.” But that’s not a legal argument. Legally, I remain persuaded that the argument based on judicial independence is feeble (I wish the federal government had made that point more forcefully, however). As I recently noted here, other courts seem committed to the view that Parliament is free to set the ranges within which judges may sentence offenders, subject to s. 12 constraints. In law, as I wrote in discussing the decision at first instance, the Bar’s inclusion of a doomed separation of powers argument allows it to jump through the standing hurdle, and the argument can then be more or less discarded.

A bad precedent, unfortunately, is not so easy to get rid of. I don’t know if the government intends to appeal, but unless it does and the Supreme Court intervenes, the Court of Appeal’s decision will be a standing invitation to any interest group with an ideological agenda to challenge any law it doesn’t like, the courts’ usual admonitions against fact-free constitutional challenges be damned.

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