On Friday, the Supreme Court of Canada struck down provisions of the Truth in Sentencing Act that limited the ability of sentencing judges to award “enhanced credit” for pre-trial time spent in jail. It did not do so on the basis that the provisions would lead to sentences that amount to cruel and unusual punishment under s. 12 of the Charter. Rather, the Court struck them down because they were “overbroad.” In light of the professed objectives that Parliament was pursuing when it enacted the legislation, it needlessly restricted the liberty of some offenders.

There is, in other words, nothing intrinsically wrong with limiting or removing enhanced credit (at least so far as this judgment is concerned). The problem is that Parliament’s reasons for doing so could not support the sweeping measures used in the Act. To use the language employed by the Supreme Court in Bedford, the problem is one of “means-ends rationality”.

According to the reasoning used in the Court’s judgment, then, Parliament remains free to bar sentencing judges from awarding enhanced credit. But it can only do so for the “right” reasons.

Reasons matter. The idea that legislation can be unconstitutionally overbroad hangs on the premise that, if Parliament crafts a measure that puts the “life, liberty, or security of the person” at risk, it must do so for reasons that can be logically justified. The fact that it would be theoretically possible for someone to dream up a defensible rationale for the measure is not good enough; if Parliament’s rationale was inadequate, then the challenged provision will fall.

There is nothing new in the courts’ preoccupation with legislative intent. What is interesting is the way in which the Supreme Court’s increasing use of the parliamentary record to determine legislative intent may affect how politics are conducted.

Consider Friday’s Supreme Court decision. It relies heavily on statements made by Justice minister Rob Nicholson in the House of Commons in 2009. He said the “practice of awarding generous credit erodes public confidence in the integrity of the justice system” and “undermines the commitment of the government to enhance the safety and security of Canadians”. Though the Court acknowledges that the minister also tied the provision to other objectives – notably, the need for more adequate rehabilitation and retribution – it found that “[t]he weight of the legislative record suggests that the challenged provision was geared towards promoting public safety and security, not retribution.”

Those who criticize the judicial use of legislative history in interpreting statutes, on the basis that courts can thereby “cherry-pick” the statements that will support their preferred reading, will find some reason for concern here. Let’s set that aside for now.

Most of us, I feel comfortable saying, take for granted that much of what is said in the House of Commons is bulls**t– and here I am using the term advisedly, in the Harry Frankfurt sense. Frankfurt, an American philosopher, observed that the defining characteristic of bulls**t is that the “bulls**tter” is not simply lying or being careless with the truth. He or she is simply indifferent to questions of truth and falsity. On that definition, as Frankfurt himself recognized, much of what passes for political discourse is bulls**t. And that is no less true of remarks made in the House of Commons when introducing or debating a proposed piece of legislation. Bills are often defended with fuzzy appeals to values and ideals. These are designed more to deflect or forestall criticism by members of the opposition than to allow genuine constructive debate on the merits.

What is interesting is that the Court does not treat these remarks as vacuous bafflegab. It proceeds on the basis that, when Nicholson said that limiting the availability of enhanced credit was intended to further public safety and confidence in the administration of justice, he meant it. Having identified the objective on this basis, the Court was then able to find that, in many cases, depriving individuals of access to enhanced credit would not advance public safety or confidence at all. The implicit message is that empty catch-phrases may help a government move its legislation through Parliament, but may also render that legislation more vulnerable to constitutional challenge if life, liberty, or security of the person are in play.

The Court has long said that, in Charter challenges, legislative objectives must not be stated in abstract or symbolic terms that do not lend themselves to careful weighing or means-ends analysis. That, however, is typically thought to be a burden on the Crown as it seeks to defend the impugned legislation in Charter litigation. By drawing so heavily upon the objectives stated in Parliament, the Court arguably also signaled to politicians that they must be able to prove a well-thought out decisionmaking process. If this just means that our elected representatives will be encouraged to spread less bullsh**t, it may have welcome implications for democratic discourse. But if we think that the real problem with politics is not that politicians are bulls**t artists – if we think, instead, that politicians are (by and large) well-meaning people who just want to frame their arguments at a level at which the public can engage, rather than one that relies upon nuance or subtlety – then we might be concerned at the idea of courts effectively imposing structure on legislative debate.

One last observation. The Court was inclined to look to Hansard when divining the legislative objective because there were no other signals to be found in the text or context of the statute. This also sends a strong message to governments – namely, that it may be prudent to state their objectives (in “succinct and precise” terms) in the preamble of legislation, and thereby take a degree of control over the way in which Charter litigation unfolds later on. Expect more of these in the future.

 


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