Any person charged with an offence has the right … to be informed without unreasonable delay of the specific offence.
This right consists of two elements. The first and primary element is the notification of the exact accusation. If the accused is not informed about the exact nature of the accusation, their ability to fully respond and defend themselves may be impeded. The accused has the right to understand the charges against them so that they can strategize their defense, gather evidence, and prepare to confront the prosecutor’s case.[1] This right is a safeguard for the legal principle that “an accused can only be charged with an offence recognized by law.”[2]
The second element is the right to be notified of the charges without undue delay. This provision serves to safeguard the right to a full response and defense.[3] The Supreme Court of Canada in R v Delaronde (1997) determined that section 11(a) also serves as an economic safeguard. The court ruled that individuals suffering economic hardships from delayed charge notifications may have legal redress.[4]
The right to be informed under s.11(a) is only triggered once a person has been charged with an offence.[5]
The section 11(a) requirement to provide sufficient notice of the charges against the accused has been partly codified by section 581 of the Criminal Code. Section 581 sets the requirements for the form of statement of offence, which includes that the statement uses plain language, uses the words of the enactment that describes the offence, or uses words that provide sufficient notice of the charges to the recipient. Additionally, it requires that each count in an indictment contains an independent statement.
Determination of “unreasonable delay” is approached using the same factors that are relevant under section 11(b) (this protects the right to be tried within a reasonable time). These factors include the length of any delay, reasons for the delay, waiver of time periods (if the individual deliberately tries to avoid being informed of the charge), and prejudice to the accused.
Note that under section 1 of the Charter, Charter rights are guaranteed “subject only to such reasonable limits … as can be demonstrably justified in a free and democratic society.” For more information on section 1 of the Charter, please refer to our webpage on the Supreme Court’s Oakes Test.
[1] R v Cisar, [2014] ONCA 151 (CA).
[2] Ibid at para 11.
[3] Ibid at para 12.
[4] R v Delaronde, [1997] 1 SCR 213.
[5] R v Heit, [1984] 7 DLR (4th) 656.
In this Q&A session, CCS summer student Anisa Hussain talks to Professor Colton Fehr (Thompson Rivers University, Faculty of Law) about the Supreme Court’s recent decision in R v Hills, a case concerning the constitutionality of a mandatory minimum under section 12 of the Charter (the Charter’s prohibition on “cruel and unusual” punishment).
A: The offender (Mr Hills) was convicted of discharging a firearm at a residence contrary to section 244.2(1)(a) of the Criminal Code of Canada, RSC 1985, c C-46. At the time of the offence, a mandatory minimum sentence of four years imprisonment was in place. Notably, these minimums and those at issue in the companion case of R v Hilbach were repealed prior to the Supreme Court hearings. The Court nevertheless considered the merits of the challenges given the Alberta Court of Appeal’s decision below, which fundamentally challenged the basic structure of section 12 of the Charter: the prohibition against subjecting anyone to cruel and unusual treatment or punishment.
The Supreme Court, Justice Côté dissenting, decided that the impugned mandatory minimum sentences violated section 12 of the Charter. According to longstanding jurisprudence, a mandatory minimum sentence will be found unconstitutional if the punishment is “grossly disproportionate” when compared to the appropriate punishment in a real or a “reasonable hypothetical” case. Relying upon a hypothetical scenario, the Court found that a variety of weapons meeting the definition of a “firearm” could not perforate the wall of a typical residence. It followed, the majority concluded, that a person firing a paintball gun at a residence would be subjected to a lengthy prison term under the law — a result that, in its opinion, violated section 12 of the Charter. Given this factual finding, it would be surprising if any jurisdiction even considered imposing a custodial sentence for such a hypothetical offender, let alone a lengthy penitentiary sentence.
A: The most contentious decisions at the Alberta Court of Appeal were written by Justices Wakeling and O’Ferrall. While these decisions were quite nuanced, and prolifically written, they effectively denied core elements of the Supreme Court’s jurisprudence under section 12 of the Charter. The precise wording of that provision states that “[e]veryone has the right not to be subjected to any cruel and unusual punishment or treatment.” In its critique, the Alberta Court of Appeal seized upon two words in this provision.
First, the Justices contended that the conjunction “and” meant that a punishment or treatment must be both cruel and unusual to violate section 12. As something like a prison sentence is not “unusual,” they maintained, a mandatory minimum sentence could never violate the Charter. Second, and alternatively, the Justices maintained that the word “subjected” meant that the person pleading that a mandatory minimum sentence is unconstitutional must actually be the subject of the unconstitutional punishment. If true, then it would not be possible to rely upon “reasonable hypothetical” scenarios in challenging the law. While a less extreme option than the first, this argument would require that the individual challenging a mandatory minimum sentence actually be liable to a grossly disproportionate punishment.
At the heart of the Alberta Court of Appeal’s arguments was a general distaste for interfering with Parliament’s decisions on the appropriate sentences for crimes. In jurisdictions where similar constraints are not in place, such as the United States, it is common for penalties to be significantly higher than in Canada. The Supreme Court nevertheless provided two general responses. Doctrinally, it observed that both its generous interpretation of the word “subjected” as permitting reliance upon reasonable hypotheticals and its interpretation of the phrase “cruel and unusual” as the expression of a single norm were long accepted in the Charter jurisprudence, even if similar wording in section 2(b) of the Canadian Bill of Rights resulted in adoption of the narrower interpretations supported by the Alberta Court of Appeal. As the Court held in R v Henry, compelling reasons are required before the Court would abandon a precedent with a diminishing impact on rights.
The Court also rejected the Alberta Court of Appeal’s proposed overhaul of the section 12 jurisprudence for normative reasons. As Justice Martin observes for the majority, abandoning reasonable hypotheticals “would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order.” The fact that it is the “nature of the law” at issue in a constitutional challenge — not the rights claimant’s status — makes it sufficient “for a claimant to allege unconstitutional effects in their case or on third parties.” “If the only way to challenge an unconstitutional law were on the basis of the precise facts before the court, bad laws might remain on the books indefinitely.” For these reasons, Justice Martin agreed with my prior work that the broader reading of section 12 “is more likely to further the purpose of the Charter: protecting citizens from abuse of state power.”
A: The answer to this question derives from the wording of section 12 of the Charter. The prohibition prevents “cruel and unusual punishment or treatment.” This is an exacting standard, and one that the Supreme Court reasonably concluded requires grossly disproportionate conduct. As the Court observes in Hills, it has elsewhere described this standard as prohibiting only punishments or treatments that “outrage standards of decency,” are “abhorrent or intolerable,” or “shock the conscience.” Given this high bar, there cannot be a requirement that Parliament impose a “proportionate” or “fit” sentence in all circumstances. Instead, Parliament will sometimes place emphasis on denunciation and deterrence in an effort to respond to what it thinks are improper uses of judicial discretion in crafting sentence ranges with respect to various offences. Parliament no doubt does so in response to public cries to be “tough on crime,” a tactic that can be politically prosperous for parties pressing to protect or procure political power (alliteration intended).
This can lead to devastating impacts on criminal defendants, especially Indigenous people and members of other minority groups who are subjected to the criminal law at an unjust rate. This issue arose in R v Sharma, which was decided just two months before Hills. In Sharma, a narrow majority rejected a constitutional challenge to laws limiting who could receive a conditional sentence order, effectively a “jail in the community” sentence. While not so obvious to some of the judges on the Court, it seems intuitive that a provision of this sort will result in many more members of minority groups serving time in prisons. The main argument put forward was that such a result violates section 15 of the Charter — the equality rights section — due to its adverse effects on Indigenous people in particular. Yet, this argument is difficult to accept as a matter of constitutional interpretation as it effectively circumvents the deferential punishment standard provided for in section 12 of the Charter. For my broader views on this tension, your readers may be interested in my recent article “Reflections on the Supreme Court of Canada’s Decision in R. v. Sharma” (2023) 60 Alberta Law Review 933.
I raise Sharma tangentially so as to provide context for what I think is another positive aspect of the Hills case. Faced with a distasteful argument that Indigeneity is irrelevant to crafting a “reasonable hypothetical offender,” Justice Martin relied upon past jurisprudence considering the sorts of personal characteristics with which a hypothetical offender may be imbued under section 12 analysis and held that Indigeneity should be a common feature of any such offender. This is a positive development for two reasons. First, it ensures that the history of colonialism will feature strongly in determining what punishments are too severe to pass constitutional muster. As this history tends to militate in favour of using a more rehabilitative lens when sentencing an offender, it can be expected to place downward pressure on what punishments will be unconstitutionally severe. Second, it allows equality as a value to impact the scope of criminal justice rights. Scholars have long lamented the criminal law’s failure to incorporate equality into its reasoning, and the majority should be commended, in my estimation, for pushing that project forward.
A: Courts have been asked by Crown attorneys to consider several other means for circumventing mandatory minimum punishments that operate in an unconstitutional manner. The first of these options assumes that such punishments will rarely if ever occur because prosecutors will exercise their discretion in a quasi-judicial manner, thereby avoiding such effects in practice. While prosecutors no doubt will at times allow an accused to plead to lesser offences with an agreed upon sentence to avoid the harshness of a mandatory minimum sentence, relying upon prosecutorial discretion is not a cure for an unconstitutional mandatory minimum sentence. As the Supreme Court explained in R v Smith (1987), such an approach ignores the language of section 52 of the Constitution Act 1982, which requires that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” The Court in R v Nur further observed that such an approach would conflate the appropriate roles of courts and prosecutors. Put differently, it “would result in replacing a public hearing on the constitutionality of [a law] before an independent and impartial court with the discretionary decision of a Crown prosecutor, who is in an adversarial role to the accused.”
Courts have also been asked to carve out judicially constructed constitutional exemptions to avoid striking down a mandatory minimum sentence because it applies unconstitutionally in some narrow case. In R v Ferguson (2008), the Supreme Court rejected this option. As Chief Justice McLachlin observed, “[t]he divergence between the law on the books and the law as applied — and the uncertainty and unpredictability that result — exacts a price paid in the coin of injustice.” Building on this reasoning in Nur, Chief Justice McLachlin suggested that constitutional exemptions deprive “citizens of the right to know what the law is in advance and to govern their conduct accordingly, and … encourage … the uneven and unequal application of the law.” For Chief Justice McLachlin, “bad law, fixed up on a case-by-case basis by prosecutors, does not accord with the role and responsibility of Parliament to enact constitutional laws for the people of Canada.”
But this does not mean that a similar approach could not be adopted via legislation. The best proposal the Supreme Court has offered is to adopt a “safety valve” clause that allows courts to impose a lesser sentence after demonstrating that imposition of a mandatory minimum sentence would result in an unconstitutionally severe punishment. I suspect some politicians would be apprehensive about this approach, but it arguably strikes the best middle ground as it would avoid the need to consider any real or reasonable hypothetical case when considering a mandatory minimum sentence’s constitutionality under section 12 of the Charter. If such a case arose, the Court would simply employ the safety valve exception to impose a fit sentence.
Thanks for reading!
Special Issue
Criminal Sentencing and the Charter
Guest Editor: Professor Colton Fehr (Thompson Rivers)
Over the last two years, the Supreme Court has written extensively on the law of sentencing and its relationship with section 12 of the Canadian Charter of Rights and Freedoms. This jurisprudence both resisted challenges to its core framework and provided an innovative lens for assessing whether treatment or punishment is impermissible: the concept of human dignity. The Court further considered the role of the right to equality in determining the constitutionality of sentencing laws, sharply disagreeing on its appropriate role in shaping sentencing policy. While not implicating a constitutional challenge, the Court also developed a unique approach to the “starting point” method of sentencing.
This Call for Papers asks authors to critically engage with these and related developments in Canadian constitutional sentencing jurisprudence. How will the Supreme Court’s understanding of human dignity impact the law of sentencing moving forward? Can the Charter contribute to meaningful and lasting change with respect to the disparate impact of sentencing law on minority populations? Was the Court correct to preserve the “severity” track of analysis under section 12 of the Charter? If so, does the Court’s reliance on hypothetical scenarios unduly interfere with Parliament’s role in crafting sentences? Is the Court’s stamp of approval on “starting point” sentencing a positive development? Articles considering other questions broadly related to the constitutional boundaries of sentencing law are also welcome.
We invite submissions for this special issue of the Constitutional Forum from scholars, lawyers, and students in the field of law and other related disciplines. The special issue will be edited by Professor Colton Fehr, a Research Affiliate with the Centre for Constitutional Studies. The deadline for submissions is 1 March 2024. We will aim to publish the issue by mid-May. It is preferable for submissions to be between 3,000 and 6,000 words, including footnotes. Please send submissions, expressions of interest, and queries to: mailey@ualberta.ca.
Section 11 of the Charter of Rights and Freedoms contains a list of rights provided to any person charged with a criminal offence. Subsection (d) protects the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”[1]
The rights contained under section 11 are engaged once a person has been charged criminally or when “conviction in respect of [an] offence may lead to a true penal consequence.”[2] This means that section 11 may be engaged by some regulatory or disciplinary offences.
As the Supreme Court put it in R v Oakes: “The presumption of innocence is a hallowed principle lying at the very heart of criminal law … confirm[ing] our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.”[3] Section 11(d) enshrines this “sacrosanct” principle of criminal law in the Charter.[4]
Furthermore, as the Court stated elsewhere in R v Oakes, section 11(d) contains “at a minimum”[5] three criteria:
1) That the accused is proven guilty beyond a reasonable doubt. To satisfy this criterion, each essential element of the offence — including the actus reus and the mens rea — must be proved beyond a reasonable doubt.
2) That the state bears the burden of proving an individual’s guilt.
3) That criminal prosecutions are conducted with due process.[7]
However, under section 11(d), an accused is not entitled to “the most favourable trial procedures imaginable.”[8] As the Supreme Court put it in R v JJ, trial fairness must not only consider the accused but also the complainant and the wider community.[9]
As with all rights contained in the Charter, section 11(d) can be limited under section 1.[10] For instance, section 1 has been used to uphold some criminal law provisions that impose a reverse onus on the accused. Such provisions, which require the accused to rebut a presumption that stems from a proven fact, are generally considered to be violations of section 11(d) (and must therefore be justified under section 1).[11] A key example of this is the law struck down in R v Oakes, which assumed that possession of narcotics was proof of an intent to traffic them unless an accused could prove otherwise.
Crucially, when conducting a section 1 analysis, the Supreme Court of Canada has recognized that section 11(d) carries significant weight. This means, in short, that a breach of the section 11(d) right will not be easily justified in terms of the collective interests that are normally considered as part of a section 1 analysis.[12]
[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11 [Charter].
[2] R v Wigglesworth, [1987] SCJ No 71 at para 21, 2 SCR 541 [emphasis added].
[3] R v Oakes, [1986] SCJ No 7, 1 SCR 103 at para 29 [Oakes].
[4] R v Brown, 2022 SCC 18 at para 145 [Brown].
[5] Oakes, supra note 3 at para 32.
[6] Brown, supra note 4 at para 99.
[7] R v JJ, 2022 SCC 28 at para 124 [JJ].
[8] Ibid at para 125.
[9] Ibid.
[10] Charter, supra note 1, s 1.
[11] Oakes, supra note 3 at para 57.
[12] Brown, supra note 4 at para 166.
Section 10 of the Canadian Charter of Rights and Freedoms states:
“Everyone has the right on arrest or detention: a) to be informed promptly of the reasons therefor; b) to retain and instruct counsel without delay and to be informed of that right; and c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”[1]
These rights are only engaged once someone has been detained or arrested (see our key term on section 9). They are not engaged where someone has “voluntarily co-operated with the police, for example, by inviting the police into his or her home and answering questions.”[2]
Subsection (a) serves to ensure that the person who is under arrest can make an informed decision about whether to submit to arrest and exercise their right to counsel.[3]
In order for the decision to be an “informed” one, the individual must be given sufficient information about the reasons for the arrest. In particular, the level of legal jeopardy that the individual faces must be clear; for instance, police cannot mislead the individual about the specific offence they are investigating.[4] Moreover, if there is a significant change in reasons (e.g. if a new charge is being added), the individual must be informed of this.[5]
The purpose of subsection (b) is to inform a subject of their immediate right to access counsel. Without this right a person would be in a vulnerable position in the face of state power and at higher “risk of involuntary self-incrimination.”[6]
The right to counsel is immediate and may only be delayed in exceptional circumstances, such as where there is a legitimate safety concern.[7] For example, the Supreme Court has accepted that a delay may be justified for individuals suspected of impaired driving, given the importance of administering roadside breath tests as quickly as possible.
Section 10(b) has two aspects: one informational and one implementational.
The informational aspect requires police to inform the individual of their right to counsel and to ensure that they understand that right.[9]
The implementational aspect requires that the individual has a reasonable opportunity to consult with counsel. To provide such an opportunity, the police must refrain from questioning that person until consultation with counsel has occurred.[10]
That said, the individual can choose to waive their right to counsel, which must be the result of a clear and informed decision.[11] The right to counsel may also be suspended by an individual’s lack of due diligence; for example, if they make no reasonable effort to contact a lawyer.[12]
The last right contained in section 10 is subsection (c), which protects an individual’s right to habeas corpus. This is the right to appear before a court and have a hearing on the validity of the detainment. If there is no basis for continued detention, the court will order the individual’s release.[13]
As with all rights under the Charter, a person’s section 10 rights are subject to limitation under section 1. Section 1 of the Charter states that the government can legally impose “reasonable limits” on an individual’s Charter rights, provided that those limits are “prescribed by law” and can be “demonstrably justified in a free and democratic society.”[14]
[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 10 [Charter].
[2] Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2019) at chapter 50-2.
[3] R v Evans, [1991] SCJ No 31, 1 SCR 869 at para 31 [Evans].
[4] R v Greffe, [1990] SCJ No 32, 1 SCR 755.
[5] Evans, supra note 3 at para 35.
[6] R v Suberu, 2009 SCC 33 at para 40.
[7] R v Debot, [1989] 2 SCR 1140, SCJ No 118 at para 42.
[8] R v Thomsen, [1988] SCJ No 31, 1 SCR 640.
[9] Evans, supra note 3 at para 44.
[10] R v Manninen, [1987] 1 SCR 1233, SCJ No 41 at paras 21-23.
[11] R v Clarkson, [1986] 1 SCR 383, SCJ No 20 at para 18.
[12] R v Smith, [1989] 2 SCR 368, SCJ No 89 at para 34.
[13] R v Pomfret, [1990] 2 WWR 568, MJ No 21.
[14] Charter, supra note 1, s 1.
Section 12 of the Canadian Charter of Rights and Freedoms states: “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment.”[1]
The purpose of section 12 has been defined by the Supreme Court of Canada (SCC) as: “prevent[ing] the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals.”[2] It does not protect other entities such as corporations.[3]
For the section to be engaged, the state must be responsible for the punishment or treatment.[4]
For section 12 purposes, punishment has been defined simply as a penalty imposed by the state (most often in the sentencing context).
While treatment has not been clearly defined in law, the SCC has opined that it includes conduct by the state that is not of a penal or quasi-penal nature.[5] For instance, in Ontario, the unnecessary use of a taser after arrest was held to be cruel and unusual treatment.[6]
Crucially, the words “cruel and unusual” do not mean that the treatment or punishment must be both cruel and unusual. Rather, these words have been interpreted broadly to cover any treatment or punishment that “outrages the standards of decency.”[7]
Section 12 has been interpreted as containing two prongs. The first prong protects against punishment that is so excessive that it offends human dignity. The second protects against punishment that, by its very nature, is incompatible with human dignity.[8]
The first prong is made out when a punishment is grossly disproportionate. This occurs when the method of punishment is acceptable (i.e. prison time) but its effects are more than “merely excessive.”[9] In undertaking an analysis under this prong, a court will consider the specific contexts of a case and the individual involved to determine whether the sentence imposed was appropriate.[10] However, the Supreme Court has made an exception to this approach when dealing with mandatory minimum sentences: in those instances, a court may consider whether a minimum sentence could hypothetically be grossly disproportionate.[11]
The second prong of the right is satisfied where the method or mode of punishment itself is “degrading and dehumanizing.”[12] These punishments are always grossly disproportionate.[13] Examples of such punishments include corporal punishment, lobotomy, castration, and torture.[14] More recently, a provision allowing for the imposition of consecutive 25-year periods of parole ineligibility was found to violate section 12 under this prong.[15] When a punishment falls into this category it can never be imposed or even remain as a possibility.[16]
As with all rights under the Charter, a person’s section 12 rights are subject to limitation under section 1.[17] However, the Supreme Court has opined that it is unlikely that any punishment that is cruel and unusual by nature (under the second prong described above) could be justified under section 1.[18]
[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 12 [Charter].
[2] Quebec (Attorney General) v 9147-0732 Québec Inc, 2020 SCC 32, para 51 [Quebec].
[3] Ibid.
[4] Rodriguez v British Columbia (Attorney General), [1993] SCJ No 94, 3 SCR 519, at para 177.
[5] Ibid at para 182.
[6] R v Walcott, [2008] OJ No 1050, 57 CR (6th) 223.
[7] R v Smith, [1987] SCJ No 36, 1 SCR 1045 at paras 52-53.
[8] R v Bissonnette, 2022 SCC 23 at para 60 [Bissonnette].
[9] Ibid at para 61.
[10] Ibid at para 62.
[11] R v Nur, 2015 SCC 15 at para 46.
[12] Quebec, supra note 2.
[13] Bissonnette, supra note 8 at para 64.
[14] Ibid at para 66.
[15] Ibid.
[16] Ibid at para 68.
[17] Charter, supra note 1, s 1.
[18] Bissonnette, supra note 8 at para 121.
On May 27th, 2022, the Supreme Court of Canada (the “SCC” or the “Court”) rendered its judgement in R v Bissonnette. The case before the SCC centered on the validity of section 745.51 of the Criminal Code. This section allowed for a sentencing judge to stack periods of parole ineligibility for mass murders.[1] Under Canadian law, an adult convicted of first-degree murder receives an automatic life sentence with no chance of parole for 25 years.[2] When an accused committed multiple murders, the sentencing judge had the power under section 745.51 to impose consecutive periods of parole ineligibility for each murder (in 25-year increments). For instance, Alexandre Bissonnette — the claimant at issue here — murdered six people, so under section 745.51 the sentencing judge could have imposed a life sentence with no chance of parole for up to 150 years.
Mr Bissonnette challenged the constitutionality of this provision on the grounds that it unjustifiably violated his rights under the Canadian Charter of Rights and Freedoms (the “Charter”). The Court agreed unanimously and struck down section 745.51. The aim of this article is to explain how the Court arrived at this conclusion.
In an Islamophobic attack on a mosque, Mr Bissonnette murdered six people in 2017. At trial, he pleaded guilty to multiple charges including six counts of first-degree murder.[3] The Crown asked the trial judge to apply section 745.51 and impose a life sentence with no chance of parole for 150 years, which would have guaranteed that Mr Bissonnette would die in prison. However, the trial judge found that section 745.51 was unconstitutional in that it violated section 7 (the right to life, liberty, and security of the person) and section 12 (the right to be free from cruel and unusual punishment) of the Charter.[4] To remedy these violations, the trial judge read the provision so as to give judges discretion in choosing the length of parole ineligibility above 25 years. As a result, the judge was able to impose a period of parole ineligibility of 40 years.[5]
On appeal, the Quebec Court of Appeal unanimously agreed with the trial judge that section 745.51 was unconstitutional. However, the Court of Appeal found that judges could not impose any excess periods of parole ineligibility.[6] As a result, Mr Bissonnette’s sentence became life in prison with no chance for parole for only 25 years. The Crown then appealed to the SCC.
Section 12 of the Charter protects a person’s right to be free from cruel and unusual treatment or punishment.[7] Since the law in question involved sentencing, the Court focused on the punishment aspect of the right. In considering whether this right had been violated, the first question the Court had to answer was accordingly whether consecutive periods of parole ineligibility constituted punishment. The SCC found that it did. Parole ineligibility, the Court said, is a consequence of conviction and impacts the liberty and security of the offender, making it a clear instance of punishment.[8]
The Court then stated the importance that the concept of human dignity plays in a section 12 analysis. While human dignity is not itself a constitutional right, the SCC noted that it is a “fundamental value” that guides Charter interpretation.[9] To reflect this, section 12 has been interpreted as prohibiting two dignity-offending types of punishment:
1. Punishment that is so excessive that it is incompatible with human dignity, i.e. punishment that is grossly disproportionate to what would be “just and appropriate.”[10]
2. Punishment that is “intrinsically incompatible with human dignity.”[11]
Such punishment, according to the Court, is cruel and unusual by nature (or “degrading and dehumanizing”) and can never be imposed without offending human dignity. Corporal punishment is one such example.[12]
In this case, Chief Justice Wagner, writing for the Court, found that section 745.51 constituted the latter type of punishment. As the Court explained, section 745.51 allowed a judge to sentence a person convicted of multiple murders to a prison term that effectively denied them a chance at parole. In other words, a judge could sentence such a person to die in prison. The Court found that such a sentence was, by its very nature, incompatible with human dignity.[13] Stripping a person of their autonomy and degrading them by negating their chance to rehabilitate and reintegrate into society was described by the Court as “shak[ing] the very foundations of Canadian criminal law,”[14] including the principle of human dignity. “To ensure respect for human dignity,” the Court wrote, “Parliament must leave the door open for rehabilitation, even in cases where this objective is of minimal importance.”[15]
The Court did note, however, that rehabilitation did not take precedence over other objectives of sentencing like deterrence and denunciation. Instead, the Chief Justice found that those other objectives were already satisfied with the automatic sentence for first degree murder — life in prison without parole for 25 years.[16] Compared to many other democratic states, this is actually a relatively harsh sentence. In Denmark and Finland, for example, the comparable ineligibility period is only 12 years, and in Germany and Switzerland it is 15.[17]
Despite section 745.51’s detrimental impact on human dignity, the Crown argued that the provision could be saved on the grounds that it gave a sentencing judge discretion on whether to impose consecutive parole ineligibility periods (and since such a decision could be reviewed on appeal). However, the Court found that discretion could not save a law that was, by its nature, cruel and unusual; such punishments must not exist even as a possibility.[18]
The Crown also argued that the Royal Prerogative of Mercy could save the provision since it provided another avenue a prisoner could use to seek release outside of parole. This argument, however, was also rejected by the Court. While the Governor General possesses the power to release an inmate under the prerogative on the advice of cabinet,[19] this power is only used in exceptional cases where there is “substantial injustice or undue hardship.”[20] For this reason, the Court found that the prerogative does not count as an “acceptable review process”[21] for most inmates. It does not allow for a realistic chance at parole, the Court said, for an inmate serving a life sentence who would be ineligible for any other parole under section 745.51.[22]
When a court has determined that a law infringes upon the Charter rights of an individual, the state may be able to justify that infringement under section 1 of the Charter, which permits “reasonable” limits on Charter rights if they can be “demonstrably justified in a free and democratic society.”[23] In this case, though, the Crown chose not to try to justify the impugned provision.[24]
As a result, Chief Justice Wagner, finding that section 745.51 breached section 12 of the Charter, struck down the provision effective immediately.[25] This declaration of invalidity was retroactive to the date the impugned provision was enacted, which meant that any inmate who may have been “doomed to die” in prison under section 745.51 is now eligible for parole 25 years after the start of their sentence.[26]
As soon as it was handed down, the Supreme Court faced a high degree backlash for this decision, with some federal politicians (including prime ministerial hopefuls) advocating for the use of the notwithstanding clause to revive section 745.51.[27] However, the Court has made it clear that striking down section 745.51 does not mean the murderers it applied to will be walking the streets in 25 years. It simply means that after 25 years they will be eligible for parole, and it will then be up to the parole board to determine if an offender has been rehabilitated to the extent that they can safely reintegrate into society.[28] Even after Bissonnette, a murderer who never reaches that stage of rehabilitation will still spend the rest of their lives in a prison cell.
[1] Criminal Code, RSC 1985, c C-46, s 745.51.
[2] Ibid, s 745.
[3] R v Bissonnette, 2022 SCC 23, paras 10-12 [Bissonnette].
[4] Ibid at paras 15-17. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 [Charter].
[5] Bissonnette, supra note 3 at paras 18-19.
[6] Ibid at para 20.
[7] Charter, supra note 4 at s 12.
[8] Bissonnette, supra note 3 at para 58.
[9] Ibid at para 59.
[10] Ibid at paras 60-62.
[11] Ibid at para 60.
[12] Ibid at paras 66-67.
[13] Ibid at para 81.
[14] Ibid at para 84.
[15] Ibid at para 85 [emphasis added].
[16] Ibid at para 89.
[17] Ibid at para 91.
[18] Ibid at para 111.
[19] Ibid at paras 113-114.
[20] Ibid at para 115.
[21] Ibid at para 116.
[22] Ibid at para 118.
[23] Charter, supra note 4 at s 1.
[24] Bissonnette, supra note 3 at para 121.
[25] Ibid at para 122.
[26] Ibid at para 137.
[27] Madeleine Cummings, “Alberta murder victim's parents, MP criticize top court's decision on parole ineligibility”, CBC News, June 28, 2022; Aaron Wherry, “The case for making the notwithstanding clause politically awkward again”, CBC News, June 1, 2022.
[28] Bissonnette, supra note 3 at para 41.
Section 9 of the Canadian Charter of Rights and Freedoms (Charter) states that “[e]veryone has the right not to be arbitrarily detained or imprisoned.”[1] According to the Supreme Court of Canada, the purpose of this provision is to “protect individual liberty against unlawful state interference.”[2] To assess whether the provision has been violated, a court will ask two questions:
1. Was the individual detained or imprisoned by the state?
2. Was the detention or imprisonment arbitrary?[3]
Detention occurs when a person “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.”[4]
There are two types of detention: physical and psychological.
Physical detention or imprisonment is typically clear and includes things like being handcuffed, placed in a police car, or put in a prison cell.
Psychological detention occurs in two scenarios:
1. “[W]here [a person] is legally required to comply with a direction or demand.”
2. “[W]here there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the [individual’s] position would feel so obligated.”[5] In other words, a person feels like they have no choice even though, legally, they do. Courts look at many factors to decide if someone was psychologically detained in this way, including the circumstances leading up to the potential detention, the nature of police conduct, and the characteristics and circumstances of the individual.[6]
An example of the first scenario of psychological detention would be when a person is pulled over by the police while driving. In R v Grant, the second scenario occurred when three police officers cornered and questioned an individual walking down a street.[7]
If a court finds that a person was detained or imprisoned, the next question it will ask is whether the detention or imprisonment was arbitrary. Arbitrariness will not exist if three criteria are satisfied:
1. The detention must be authorized by law.
2. The authorizing law must not be arbitrary.
3. The manner in which the detention is carried out must be reasonable.[8]
If the detention or imprisonment fails to satisfy any one of these criteria, then the court will find the detention to be arbitrary.
Once a person is subject to an arrest or detention under the above test, that person’s section 10 rights under the Charter become engaged. These rights include (among others): the right to reasons for detention or imprisonment, and the right to counsel.[9]
As with all rights under the Charter, a person’s section 9 rights are subject to limitation under section 1. Section 1 of the Charter states that the government can legally impose “reasonable limits” on an individual’s Charter rights, provided that those limits are “prescribed by law” and can be “demonstrably justified in a free and democratic society.”[10]
[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[2] R v Grant, 2009 SCC 32 at para 54 [Grant].
[3] R v Hufsky, [1988] SCJ No 30, 1 SCR 621 at paras 12-13.
[4] R v Therens, [1985] SCJ No 30, 1 SCR 613 at para 53.
[5] Grant, supra note 2 at para 30.
[6] Ibid at para 44.
[7] Ibid.
[8] R v Le, 2019 SCC 34 at para 124.
[9] Charter, supra note 1 s 10.
[10] Ibid, s 1.
This is the second article in a two-part series on the criminal defence of extreme intoxication in Canada. Part 1 focused on the history of the defence as well as the creation of section 33.1 of the Criminal Code. This section prohibited a person accused of a general intent offence from using the extreme intoxication defence if the intoxication was self-induced and their actions threatened the bodily integrity of another person.[1]
This second article will focus on the Supreme Court of Canada’s decision to invalidate section 33.1 in the recent case of R v Brown (2022).
On a winter’s night Matthew Brown went to a friend’s party and consumed alcohol as well as several portions of magic mushrooms. At around 3:45am Mr Brown removed his clothing and ran barefoot into the cold.[2] Shortly afterwards, while in an intoxicated state, he broke into a nearby house and violently attacked the resident with a broken broom handle. The resident was left with cuts, contusions, and broken bones in one of her hands.[3]
Mr Brown subsequently broke into another house where the police found him on the bathroom floor with visible injuries to his bare feet. He was whispering to himself and appeared confused. He would later state that he had no recollection of his actions at either home.[4]
Mr Brown was charged with two counts of breaking and entering, one count of aggravated assault, and one count of mischief to property over $5000. Evidence indicated that the magic mushrooms caused his delirium.[5]
At trial, Mr Brown argued he should be found not guilty by reason of automatism, since his intoxication was so severe that he was deprived of the ability to control himself and to intentionally commit criminal acts. The Crown, however, invoked section 33.1, which precluded Mr Brown from using the extreme intoxication defence for the charge of aggravated assault (the defence was available, however, for the mischief charge).[6] In response, Mr Brown challenged the constitutionality of section 33.1, arguing that it violated sections 7 and 11(d) of the Charter of Rights and Freedoms (the Charter). He was successful at trial and was acquitted of the mischief and assault charges. However, the Alberta Court of Appeal overturned the lower court’s ruling and convicted Mr Brown of aggravated assault.[7] Mr Brown then appealed to the SCC.
In a weighty 9-0 decision, Justice Kasirer, writing on behalf of the Court, struck down section 33.1 as unconstitutional. By denying the extreme intoxication defence to those accused of certain general intent offences, the Court held, Parliament had unjustifiably violated the Charter of Rights and Freedoms.
One of the key issues the SCC faced in Brown was the interpretation of section 33.1. The Crown’s lawyers argued that section 33.1 not only eliminated the extreme intoxication defence for certain crimes, but also created a new “predicate” offence of extreme intoxication. This would allow an individual to be held criminally responsible for violent conduct if they “knew or ought to have known” that consuming an intoxicant could cause them to lose control and harm others.[8] However, the Crown (and various interveners) admitted that a plain reading of section 33.1 did not support this argument, conceding that the section’s drafting was “odd” and “inelegant.”[9] The Crown instead encouraged the SCC to “read words into the text to overcome”[10] these defects, thereby giving effect to the law’s underlying purpose: to “create… a new mode of liability.”[11] Justice Kasirer, however, refused this invitation. As he put it: “To do [this] would strain the meaning beyond what the text can reasonably bear.”[12]
Years before Mr Brown’s case made its way through the courts, one legal scholar claimed that sections 7 and 11(d) of the Charter were clearly violated by section 33.1 of the Criminal Code, and that it should be uncontroversial to say so.[13] In Brown, the Supreme Court seemed to agree.
Section 7 states that a person’s liberty cannot be infringed except in accordance with the principles of fundamental justice.[14] In Brown, the SCC noted that it is a principle of fundamental justice that an individual will only be convicted of a crime where there is “proof of fault reflecting the offence and punishment faced by the accused.”[15] Section 33.1 violated this principle, the Court said, because it would allow someone to be convicted — and deprived of their liberty — even if the harm they caused was not a reasonably foreseeable consequence of their intoxication. For example, a person could be convicted if they simply had a bad reaction to prescribed painkillers or if they took a drug that is not known to cause such adverse reactions.[16] In other words, section 33.1 would allow a court to convict an accused despite a lack of mens rea (i.e. a “guilty mind”).[17]
The Court also held that section 33.1 violated a second principle of fundamental justice: the requirement that individuals are only held criminally responsible for voluntary conduct. Section 33.1 violated this requirement by allowing someone in a state of automatism — someone who is incapable of voluntary action by definition — to be convicted of a crime.[18]
Finally, the Court then considered Mr Brown’s argument that section 33.1 violated section 11(d) of the Charter. Section 11(d) protects an accused’s right to be presumed innocent until proven guilty, which means that all essential elements of the offence must be proven beyond a reasonable doubt.[19] However, under section 33.1, the intent to commit certain violent offences was effectively replaced by the intent to become intoxicated, thereby establishing what the Court called a “guilt-by-proxy” regime.[20] Section 11(d) prohibits this substitution, the Court said, because it “cannot be said that, ‘in all cases’ … the intention to become intoxicated can be substituted for the intention to commit a violent offence.”[21] As mentioned above, an individual may innocently “consume legal intoxicants for personal or medical purposes”[22] without being able to foresee the risk that they would then commit a violent offence. In such cases, the blameworthiness of the individual cannot be proven simply by proving their earlier intent to consume intoxicating substances.
Having found that section 33.1 infringed the rights protected under sections 7 and 11(d) of the Charter, the Court then turned to the question of whether the provision was nonetheless legally justified under section 1 of the Charter. As noted in the previous article, a law that infringes fundamental rights can be saved under section 1 of the Charter if it is justified under an analysis referred to as the Oakes test.[23] In order for the law to be saved, it must have a pressing and substantial objective and meet a three-part proportionality test:
1. It must be rationally connected to its objective;
2. It must be minimally impairing of Charter rights, and;
3. It must be proportionate, meaning that there must be an overall balance between its “deleterious” and “salutary” effects.[24]
In Brown, the SCC noted that section 33.1 had two pressing and substantial objectives: first, to protect victims of intoxicated violence (especially women and children), and second, to hold accountable those who voluntarily ingest intoxicants and create a risk to others through doing so.[25]
Having identified and validated these objectives, the Court then moved on to the application of the aforementioned proportionality test. The first prong of this test, assessing whether the law is rationally connected to its objectives, was easily satisfied. The Court noted that the threat of criminal sanction provided for by the law would have at least some deterrent effect, which makes it relevant to its protective purpose. Further, the law clearly holds accountable those who become extremely intoxicated and commit a violent crime, thus connecting it to its second objective.[26]
However, the Court found that the second step of the proportionality analysis, the minimal impairment step, was not met. In this regard, Justice Kasirer noted that there were “real and substantial” alternatives to achieving Parliament’s objectives that were less impairing of Charter rights.[27] These alternatives included the creation of a stand-alone offence (an offence of criminal intoxication) or a new standard of criminal negligence.[28]
Finally, the Supreme Court turned to weighing the law’s salutary benefits and deleterious effects.[29] To begin with, the Court noted that section 33.1 did have substantial benefits, especially insofar as it helped ensure equal protection of the law for women and children. However, for the Court, these benefits were ultimately outweighed by the law’s deleterious impact on fundamental rights. As Justice Kasirer wrote, it is “difficult to imagine more serious limitations than the denial of voluntariness, mens rea, and the presumption of innocence all in one.”[30] The Court accordingly invalidated section 33.1 on the basis that its impact on fundamental rights was too severe to be justified under section 1 of the Charter.
The Brown ruling provoked outcry across the country,[31] and Parliament accordingly moved quickly to introduce new legislation on the extreme intoxication defence.
On Friday June 17th, the government introduced Bill C-28, which appears to address the issues that resulted in section 33.1 being struck down. Under these new rules, the extreme intoxication defence will no longer be available if an accused departed from a reasonable standard of care with respect to the consumption of an intoxicating substance before committing the offence. That departure must be assessed by a court based on numerous factors, including foreseeability of risk and whether the accused took steps to minimize the risk.[32] Therefore, it is likely that someone who has an adverse and unexpected reaction to prescription medication, for example, would still be able to use the defence.
In creating this new framework, Parliament seems to have taken its cues directly from the SCC, which had opined in Brown that the creation of a standard of criminal negligence would allow Parliament to pursue section 33.1’s objectives without falling foul of the Constitution. If Bill C-28 is enacted, the extreme intoxication defence will again be restricted in Canada, but this time in a way that has less of a detrimental impact on individuals’ Charter rights.
[1] Criminal Code, RSC 1985, c C-46, s 33.1.
[2] R v Brown, 2022 SCC 18 paras 15-16 [Brown].
[3] Ibid at para 17.
[4] Ibid at para 18.
[5] Ibid at paras 19-20.
[6] Ibid at paras 20-21.
[7] Ibid at paras 22-29.
[8] Ibid at para 73.
[9] Ibid at para 74.
[10] Ibid.
[11] Ibid at para 73.
[12] Ibid at para 88.
[13] Michelle S Lawrence, “Voluntary Intoxication and the Charter: Revisiting the Constitutionality of Section 33.1 of the Criminal Code” (2017) 40:3 MLJ 391 at 415.
[14] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7 [Charter].
[15] Brown, supra note 2 at para 95.
[16] Ibid at paras 91-93.
[17] Ibid at para 95.
[18] Ibid at para 96.
[19] Charter, supra note 14, s 11(d).
[20] Brown, supra note 2 at para 103.
[21] Ibid at para 104.
[22] Ibid.
[23] Charter, supra note 14, s 1.
[24] Brown, supra note 2 at para 110.
[25] Ibid at paras 119-122.
[26] Ibid at paras 132-134.
[27] Ibid at para 141.
[28] Ibid.
[29] Carter v Canada (Attorney General), 2015 SCC 5 at para 122.
[30] Brown, supra note 2 at para 155.
[31] Warren Kinsella, “Supreme Court ruling makes Canada a less-safe place”, Toronto Sun, May 17, 2022; Elizabeth Sheehy, Isabel Grant & Kerri A Froc, “Supreme Court of Canada ruling a setback for women”, Toronto Star, May 13, 2022.
[32] Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication), 1st Sess, 44th Parl, 2022, cl 33.1.