Judges are checking Harper’s powers
Just as he predicted 7 years ago, top court won’t bend to his will
Afew days before the election of 2006, when the polls showed he was about to end 13 years of Liberal government, Stephen Harper told reporters that Canadians shouldn’t be uneasy at the prospect of “absolute power” for a Conservative government because it would be kept in check by senators, civil servants and judges appointed by the Liberals.
“We have no alternative but to accept the checks,” he said. “They’re part of our system. Judges are named. Judges can’t be removed except under extraordinary circumstances.”
Seven years later, the Senate and the senior ranks of the civil service are full of Harper appointees, but judges are acting as a stubborn check on Harper’s absolute power, just as Harper predicted.
The prime minister seems to resent limits on his power, going so far as to recently state that he wouldn’t take no as an answer from U.S. President Barack Obama on the Keystone XL pipeline, so it will be interesting to see how he responds to the bench.
On files that are key to his plans for the next two years, Harper faces judges who seem disinclined to bend to his will.The first is criminal justice. The overwhelming view among criminologists is that mandatory minimum sentences are expensive and ineffective at deterring crime, and in the United States even the most conservative politicians are turning against them because state governments can’t afford to house and feed so many minor offenders.
Canada’s Conservatives — taking what you might call a values-based approach to crime and punishment — have a very simple message on crime: we need to get tough on criminals.
The great thing about that message is that many Canadians agree with it. The Conservatives nurture that public sentiment, connecting with voters and donors at every opportunity, sometimes to the point of absurdity.
In the recent throne speech, for instance, the government promised to bring in “Quanto’s law,” in honour of a slain Edmonton police dog. The law will make it illegal to kill or harm a law enforcement animal, which is, of course, already illegal.
In order to keep our streets safe, protect police dogs and keep connecting with supporters and donors, the Conservatives have imposed mandatory minimum sentences on everything from growing pot plants to gun crimes.
On Tuesday, the Ontario Court of Appeal ruled that one of those mandatory minimums is unconstitutional, saying it violates the section of the Charter of Rights and Freedoms that prohibits “cruel and unusual punishment.”
‘We will not be deterred by a few judges that take a different view. That is their right, but it is in my view Parliament’s discretion to pass laws.’
PETER MACKAY
Federal justice minister
The test case involved Leroy Smickle, who was caught alone in his underwear in his cousin’s apartment with a loaded gun in his hand, which he says he was using to upload a “cool” Facebook picture. Judge Anne Molloy refused to impose the mandatory minimum, instead giving Smickle a one-year conditional sentence.
The Crown appealed, and the appeal court ruled for Molloy. The mandatory minimum legislation is a “rational legislative response to the very real public safety concerns,” the court ruled, but found that the law would apply to people other than the gun-toting thugs that Parliament meant to target.
“In those circumstances, the three-year penitentiary term would surely be a grossly disproportionate sentence,” the court ruled.
This should not have surprised the government, since when the Tories tabled the bill, the Library of Parliament wrote in a legislative summary that “it is possible for the mandatory punishment, in a specific matter or reasonable hypothetical case, to be ‘grossly disproportionate,’” which is just what the court found.
The government seems to have ignored that warning, and according to former Justice Department lawyer Edgar Schmidt, it is not properly checking that its legislation complies with the charter.
In January, Schmidt filed a suit against the government, in which he alleges that since 1993, justice department lawyers have been instructed to ignore a law that requires Parliament be informed when legislation might violate the charter. The day after he filed his suit, the government fired him, which Federal Court judge Simon Noël described as “unbelievable.”
The government can’t, as Harper pointed out back in 2006, fire Noël, but Justice Minister Peter MacKay did criticize judges who have balked at imposing victim surcharge fees on destitute offenders, and chided the appeal court that overturned the mandatory minimums.
“We will not be deterred by a few judges that take a different view,” he said. “That is their right, but it is in my view Parliament’s discretion to pass laws.”
MacKay knows, but didn’t say, that it is the court’s responsibility to determine if those laws comply with the charter, and he knows that the government can’t fight the bench.
When the Supreme Court blocked a federal attempt to shut down a safe drug-injection facility in Vancouver, and poured cold water on plans for a national securities regulator, the government complained, did as the judges ordered, and tried to find another way of achieving its goals.
It will be interesting, though, to see how Harper reacts when the Supreme Court justices eventually tell him that he can’t reform or abolish the Senate without a deal with the provinces.
It seems likely that he will see this as a communications challenge. The prime minister can’t fight the Supremes, can’t reform the Senate, can’t lock up everybody he’d like to lock up, but he can deliver messages that press his supporters’ emotional buttons, even if he can’t deliver on what he has promised them.