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A Criminal Mind: LeBel had major influence on criminal law

Justice Louis LeBel retired from the Supreme Court of Canada on Nov. 30 when he bumped up against the mandatory retirement age of 75. The occasion was significant. LeBel had served for nearly 15 years and had become one of the court’s most respected and influential voices. Though we tend not to lavish the kind of outsized praise or derision on our Supreme Court justices that their U.S. counterparts enjoy, it’s worth taking stock of their contributions as they pass from the scene. It’s one window onto how our law has developed over time.

I’d like to take a necessarily abbreviated look at what I consider to be LeBel’s most influential contributions to criminal law and procedure. Though not originally a criminal law expert like his colleague justice Morris Fish, LeBel had a significant impact on the court’s criminal jurisprudence over the course of his tenure. Despite his reputation as a liberal, I consider him to have been a consummate moderate in criminal matters with a deep concern about procedural fairness to the accused without losing sight of society’s pressing need to investigate and convict the guilty.

That sense of balance was evident in R. v. Araujo, LeBel’s first significant criminal procedure decision as a member of the court. In that case, a unanimous court led by LeBel breathed new life into the requirement to grant a wiretap authorization only where the police have demonstrated investigative necessity while rejecting lower court jurisprudence that had relaxed this standard to a troubling degree. At the same time, the court rejected the defence contention that the court could authorize wiretaps only as an absolute last resort. Indeed, LeBel’s common-sense approach to the review of wiretap authorizations caused the judgment to become the go-to authority for review of judicial authorizations more broadly.

In criminal procedure, LeBel’s position as a principled but moderate liberal comes through in R. v. Regan, in which a former Nova Scotia premier sought to have his sexual assault prosecution stayed because of Crown misconduct amounting to attempted shopping for a judge. LeBel’s majority decision in Regan consolidated the modern test for when an abuse of process by the Crown merits a stay of proceedings. He concluded on the facts that the misconduct in Regan didn’t meet the high threshold for sparing the accused a trial on the merits.

While cases like Regan and Araujo have more day-to-day relevance for criminal practitioners, to my mind R. v. Ruzic is probably LeBel’s most lasting and profound contribution to criminal law jurisprudence. There, the accused had brought two kilograms of heroin into Canada from Yugoslavia. Her defence was duress after a man in Belgrade threatened to harm her mother if she didn’t import the drugs. But there was a problem with this defence: The statutory definition of duress requires a threat of immediate harm from a person who is present at the time of the offence. It literally requires the proverbial gun to the head. Since the threats against her weren’t immediate and their source not present, the accused was out of luck.

Writing for a unanimous court, LeBel held that the state couldn’t legitimately punish conduct that was morally involuntary. The principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms forbid it. It followed that the statutory defence of duress was unconstitutionally narrow. And if the court believed Ruzic’s story, her conduct fit the bill of moral involuntariness and an acquittal should follow. Ruzic makes clear that the principle that criminal conduct must be voluntary in a meaningful moral sense and not just in a literal physical way is one of the deep organizing principles of our criminal law.

Although LeBel was usually in the majority in significant criminal cases, he did issue some significant dissents. In the 2008 sniffer dog cases, LeBel sounded a note of caution about the judicial expansion of common law police powers in the absence of any parliamentary input. His view narrowly failed to carry the day, but in the very recent case of R. v. MacDonald, LeBel’s majority decision put the brakes on further expansion of the common law power to search for officer safety reasons. The common theme in LeBel’s decisions on police powers, I think, is an abiding concern for circumscribing police discretion to interfere with individual liberty within reasonably predictable bounds.

Perhaps most significantly, LeBel dissented from the court’s pronouncements in R. v. Singh and R. v. Sinclair, two decisions that gave police considerable latitude in conducting custodial interrogations. Both decisions involved 5-4 splits and in both LeBel was with the faction that would have favoured the suspect’s right to interrupt an interrogation by invoking the right to silence or to counsel over the officers’ desire to get a confession. Those decisions remain controversial, and many in the defence bar would like to see the pendulum swing back toward the more protective view favoured by LeBel and his dissenting colleagues.

As with any judge, LeBel’s record has its blemishes. His decision in R. v. Ryan, jointly authored by Justice Thomas Cromwell, found that the accused’s battered-woman claim provided no legal defence for having tried to hire two hit men to kill her estranged husband. It didn’t meet the elements of either duress or self-defence. Nonetheless, the court granted a stay of proceedings that spared the woman a new trial for reasons that struck me as opaque and indefensible. I suspect LeBel and his colleagues have come to regret that decision in light of facts that have subsequently come to light casting grave doubt on the veracity of the woman’s account and the merits of her defence.

More lasting, I think, will be LeBel’s contributions to sentencing jurisprudence in two important cases involving aboriginal defendants, R. v. Nasogaluak and R. v. Ipeelee. In Nasogaluak, the court held that a breach of an accused’s Charter rights could justify reducing an otherwise fit sentence. Ipeelee reaffirmed the R. v. Gladue approach to sentencing aboriginal offenders and recommitted the justice system to addressing the problem of aboriginal overrepresentation in prisons. Both decisions, grounded in a practical and humane appreciation of social reality, speak to a fundamental concern for proportionality in the imposition of punishment by the state.

Interestingly, the three-judge Quebec contingent on the court has seen a complete turnover since 2012. The new judges don’t yet have extensive track records in criminal law. Unlike LeBel, who had built up a track record on the Quebec Court of Appeal, his replacement, Justice Suzanne Côté, is an unknown quantity judicially given her appointment straight from the bar. Her predecessor leaves a worthy legacy to aspire to.

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at mgourlay@hhllp.ca.


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