Principled Remedial Discretion Under the Charter

The first part of this paper outlines three different approaches to the exercise of remedial discretion under the Charter, namely the exercise of strong discretion, rule-based discretion and principled discretion. The Supreme Court’s decision in Doucet-Boudreau v. Nova Scotia is next examined as an example of how remedial discretion can be guided by general principles such as the need for an effective remedy and respect for institutional roles. The Court’s advance costs decision in British Columbia v. Okanagan Indian Band is examined from the perspective of all three models of discretion with an emphasis on the dangers of strong discretion that is not guided by law. Finally, decisions on suspended declarations of invalidity, in particular Schachter v. Canada, are examined with an emphasis on the dangers of rule-based discretion that reduces remedial discretion to self-executing categories

The Problems of Public Choice: The Case of Short Limitation Periods

This article examines public choice as a predictor of legislative behaviour and as a guide for statutory and constitutional interpretation. It focuses on short limitation periods, which have often been criticized as special interest legislation benefiting well-organized groups, such as medical doctors. The author concludes that the economic assumptions of public choice cannot adequately explain complexities in interest group behaviour, and that the Canadian legislative process has the ability to advance the interests of diffuse and unorganized groups, such as patients. The author also argues that given the absence of normative content in public choice analysis, Canadian courts have rightly rejected it as a guide for constitutional review or strong forms of statutory interpretation, which ignore clear legislative purposes or words

Charkaoui and Bill C-3: Some Implications for Anti-Terrorism Policy and Dialogue between Courts and Legislatures

The first part of the paper examines Charkaoui withparticular attention to the Court’s survey of less rights-invasive alternatives, including British special advocates and the Arar Commission’s use of security-cleared lawyers. The Court’s holding with respect to indeterminate detention and its relation to the possibility of deportation to torture is also examined.The second part of the paper examines the legislative response to Charkaoui with attention to the role of special advocates and the role of Federal Court judges in defining their precise role. The issue of whether Parliament simply obeyed the Court’s decision or expanded the policy debate is examined. In the third part, Bill C-3 is assessed as an example of truncated dialogue with respect to both security certificates and the treatment of secret information. The conclusion assesses the lessons of Charkaoui and Bill C-3 both for the development of fair and effective anti-terrorism policy and for dialogue between courts and legislatures about the treatment of the rights of the unpopular. It suggests that many issues are left to be resolved with respect to both the sustainability of security certificates and the proper approach to secret information in security certificate proceedings and other legal proceedings

Justice Bertha Wilson: A Classically Liberal Judge

This paper argues that Justice Wilson’s approach to judging was influenced by a classical liberalism that defended the rights of the individual against the power of the state. The first part of the paper explores the concept of classical liberalism by examining Justice Wilson’s judgment in R. v. Morgentaler. Although this landmark judgment is influenced by feminism because Justice Wilson writes from the perspective of a woman, it is ultimately grounded in classical liberalism that protects the freedom of all individuals and requires the state to justify any incursion on individual freedom. The second part of the paper examines a number of procedural decisions made by Justice Wilson and suggests that they were grounded in a classical liberalism that stressed the obligations of the state to treat all individuals fairly and to give individuals the benefit of the doubt. The third part of the essay examines Justice Wilson’s approach to the substantive content of the criminal law. In decisions such as R. v. Tutton, Justice Wilson expressed a preference for subjective fault requirements that would encompass individuals in all their idiosyncrasies. at the same time, Justice Wilson respected clear decisions by Parliament to employ objective standards while attempting in cases such as R. v. Hill and R. v. Lavallee to apply objective standards in a manner that was fair to all. The fourth part of this paper examines how Justice Wilson’s classical liberalism informed her unflinching and rigorous approach to the Oakes standard of justification. Her approach was frequently a dissenting one, but it served as a pole star that helped ensure that the Court never lost sight of the fact that section 1 of the Charter required the state to justify why it was necessary to infringe rights. Justice Wilson’s approach to section 1 was ultimately grounded in liberal principles that stressed the importance of protecting all individuals from the state and it did not demonstrate any ambivalence about the potentially harmful powers of the state

Police Independence and the Military Police

This article examines police independence in the context of the military police. The author concludes that the independence of the military police to investigate both Criminal Code and Code of Service Discipline offences should be recognized as part of the unwritten constitutional principle associated with the rule of law and as a principle of fundamental justice under section 7 of the Charter. The author examines the increased recognition of the importance of police investigative independence since the Somalia Inquiry, including the recent expansion of the command authority of the Canadian Forces Provost Marshal over all military police. The relation between police independence and the rule of law is discussed. The author notes that while the military command structure has a legitimate interest in providing general and public policy guidance to the military police, clause 18.5131 of Bill C-15-which has been introduced but not enacted in Parliament-would violate police independence by enabling the Vice Chair of Defence Staff to issue instructions to the military police in specific cases. Such interference with the investigative independence of the military police would be inconsistent with increased post-Somalia recognition of the importance of police independence and could undermine the application of the rule of law to the Canadian military

Searching for Smith: The Constitutionality of Mandatory Sentences

The jurisprudence of the Supreme Court of Canada on the constitutionality of mandatory minimum sentences, from R. v. Smith to R. v. Latimer, is reviewed and assessed in light of relevant developments in constitutional law and sentencing. These include the Supreme Courts increasing interest in constitutional minimalism and corresponding reluctance to rely on hypothetical offenders and facial declarations of invalidity. The manner in which the Court\u27s increasing concern for crime victims and fault levels has been used to justify upholding mandatory sentences is examined. The author also relates this jurisprudence to trends in sentencing, including an increasing acceptance of mandatory sentences as deserved punishment relative to the fault of offenders. Also explored is the possibility that the Court\u27s decision to uphold mandatory penalties as not being grossly disproportionate may require a ratcheting up of the sentencing tariff to maintain ordinal proportionality. The impact of enacting mandatory minimum sentences on the Court\u27s dichotomy between the punitive and restorative purposes of sentencing is also addressed. Finally, the author concludes that the Supreme Court has abandoned many of the premises of Smith giving Parliament the dominant role in deciding whether to enact mandatory minimum sentences. The author argues that a return to the activism of Smith would produce a strong judicial voice in favour of individualized punishment utile not providing the final word in dialogues between the Court and Parliament on the subject of punishment

Sharpening the Dialogue Debate: The Next Decade of Scholarship

The first part of this commentary examines the roles of coordinate construction in which legislatures act on their own interpretation of the constitution, second look cases in which the courts judge the constitutionality of a legislative reply to a judicial decision, and various constitutional remedies. The second part examines some differences in emphasis between the author\u27s approach to dialogue and that taken by Hogg and his co-authors with respect to the justification of the judicial role in the dialogue, the relation between Charter dialogue and common law constitutionalism, and the proper interpretive approach to section 7 of the Charter. Three areas that may be a productive focus for the next decade of scholarship about institutional dialogue are outlined. They involve comparative studies, dialogue in the post-9/11 environment and increased study of the legislative role in dialogue

The Charter versus the Government’s Crime Agenda

The Safe Streets and Communities Act, like many other parts of the government’s crime agenda, relies on both prosecutorial discretion and a general judicial reluctance to strike down mandatory sentences. Successful Charter challenges to mandatory sentences are not impossible, as seen by Molloy J.’s recent decision in Smickle, but they will be difficult. In particular, the use of reasonable hypotheticals in section 12 analysis may be precluded by reliance on the assumption that longer mandatory sentences will not be applied when the Crown has the power to avoid such sentences by electing to prosecute the relevant crime by way of more lenient summary conviction procedures. Courts will the n be reluctant to review Crown elections as exercises of prosecutorial discretion. The Supreme Court will ultimately have to decide whether it wishes to maintain the level of judicial deference towards mandatory sentences that it has demonstrated in the past. This paper argues that a more traditional approach to proportionality that focuses on the relationship between particular crimes and punishment is more promising than newer approaches based on arbitrariness in relation to legislative purposes or gross disproportionality in the costs and benefits of legislative interventions, as conducted in the Insite case and Bedford. Following Smith and Ipeelee, a contextual approach to proportionality between crime and punishment that factors in offender characteristics should be taken rather than the more abstract approach taken in Morrisey. Should mandatory sentences be found to violate either section 7 or section 12 of the Charter, they will be difficult to justify under section 1. Policy analysis about the necessity and effects of mandatory sentences is best conducted under section 1 rather than within sections 7 and 12