Tearing down Harper’s crime legacy
IAN MACLEOD FOR TWO YEARS, THE SUPREME COURT HAS BEEN DECLARING ANTI-CRIME LAWS CREATED UNDER STEPHEN HARPER’S CONSERVATIVES UNCONSTITUTIONAL, AND EXPERTS BELIEVE MORE WILL FALL.
On the closing day of the 41st Parliament last June, the Conservative government’s final gesture was to stand for the second reading of Bill C-53, the Life Means Life Act. Its stated goal was to lock up the most vile murderers for the rest of their natural lives.
Courts and parole boards already have discretionary powers allowing them to do just that. Child serial killer Clifford Olson died in prison. So will Paul Bernardo. But the bill proposed to eliminate all discretion, replacing it with the most severe criminal sentencing regime since the death penalty.
The Conservatives’ enmity towards repeat, violent criminals and child sex predators never waned during their decade in power and, for a time, opinion polls showed public attitudes on crime hardening, including approval for a return to capital punishment.
THE CONSERVATIVES SAW THE CHARTER AS A CONSTITUTIONAL IMPEDIMENT TO WHAT THEY WANTED TO DO. — ANTHONY DOOB, UNIVERSITY OF TORONTO
But this month, overshadowed by the release of the Liberals’ assisted-dying legislation, the Supreme Court of Canada dealt the most forceful blow yet to the Tories’ tough-on-crime legacy by repudiating not one, but two Harper-era laws on the same day. The court ruled that mandatory-minimum sentences for drug crimes and limiting the credit criminals receive for time served in pretrial detention both violate the Charter of Rights and Freedoms.
For two years, the court has been declaring anti-crime laws created under Stephen Harper’s Conservatives unconstitutional, and experts believe more will fall. On Thursday, the Supreme Court agreed to hear another case, on changes to the parole system the Tories introduced four years ago. Some suggest the court, for which Harper had little apparent regard, is dismantling his government’s criminal justice legacy.
A decade ago, the national homicide rate and overall crime rate sat at 45-year lows, though the headlines screamed fear and loathing.
From Mayerthorpe, Alta., where four young Mounties were gunned down in 2005 at a marijuana grow-op, to courtrooms in British Columbia and Ontario and the trials of serial killers Robert Pickton and disgraced air force Col. Russell Williams, brutal, senseless crime seemed to be spreading.
In the run- up to the January 2006 federal election, Stephen Harper campaigned on a sweeping, get-tough approach to crime. At a campaign stop near Mayerthorpe, he declared that, had longer sentencing and parole restrictions been in place, James Roszko, who killed the four RCMP officers, would still have been behind bars for previous serious crimes.
The message was unmistakable: Criminals’ rights and revolving courtroom doors were depriving Canadians of the fundamental right to safe streets. It was time to put the boots to bad guys.
“I truly believed that we were doing the right thing, making people accountable for the crimes that they commit and standing up for victims,” says Rob Nicholson, an Ontario MP who served as Harper’s justice minister for more than six years. “It was important to do, it was the right thing to do, so I’m proud of the record that we have.”
At a major campaign stop in downtown Toronto flanked by victims of crime, Harper unveiled a five-year, $500-million overhaul of the criminal justice system near the scene of the 2005 Boxing Day gang shootout that left 15-year-old Jane Creba dead and six bystanders wounded.
Two weeks later, Harper was prime minister. Any suspicions that his tough-on-crime stance ( and crime- scene campaign stops) were more about temporary political advantage than sincere belief were then washed away by a flood of justice legislation in the House of Commons.
Nicholson, responsible for getting much that legislation passed, insists the effort was driven by a prime minister who believed law-abiding Canadians were getting shafted by liberalminded beliefs that serious, repeat offenders deserve yet another break.
The government hit that point home in 2009 by abolishing the faint hope clause, which allowed those convicted of murder to apply for parole after 15 years instead of 25. Then it gave judges the power to impose consecutive periods of parole ineligibility on multiple murderers. (Justin Bourque, who gunned down three Moncton Mounties in 2014, now won’t be eligible for parole for 75 years — 25 for each murder — compared to 25 years under previous law.)
“We wanted to make sure that people are accountable for all of their crimes,” Nicholson says. “Some of these laws aren’t popular with everybody, but he (Harper) did (it) because he believed in it and we believed we were doing the right thing.”
By 2010, and later invigorated by a 2011 parliamentary majority, one-third of the Conservative government’s legislative agenda consisted of tough-on-crime initiatives, according to a study by the Canadian Centre for Policy Alternatives. The Liberals and NDP put up feeble opposition.
By 2012, the already hefty Criminal Code was about 60 laws heavier. The number of mandatory-minimum sentencing laws exploded, often for reasons that weren’t clear.
Jails and prisons reported increasing overcrowding and violence. When C-53, the proposed life-without-parole legislation, arrived in the Commons last spring, there seemed little left for the Tories to do to villains but throw away the key.
Yet it was the Conservatives who soon found themselves tossed by the electorate. And the Supreme Court, arguably among the nation’s most trusted institutions, may have unintentionally played a role in that.
Until 2006, federal criminal law policy was indistinguishable between Liberals and Conservatives, says Anthony Doob, Professor Emeritus of Criminology at the University of Toronto.
“The basic things about values and so on were all there, across party lines, until the last 10 years. So we’re talking about a very peculiar period of time. (The charter) is not a hurdle, it’s not an impediment, it’s a statement of the kind of country that we want to live in. (The Harper Conserva-
WE WENT FORWARD WITH WHAT WE DID IN THE AREA OF CRIME BECAUSE WE BELIEVED IN IT.
tives’) view of the charter was very different.”
Responding to judicial pushback from lower courts, in 2014 the justices of the Supreme Court started striking down Tory justice laws with the charter, the biggest hammer in the land.
First to go was a threeyear-old law that retroactively lengthened the amount of time non-violent, first-time offenders spent in jail, which the court declared double jeopardy. More defeats have followed, including those this month.
In 2012, former justice department lawyer Edgar Schmidt took the government to federal court, alleging that successive ministers of justice and the drafters of federal statutes routinely failed to follow a standard that draft laws be constitutionally sound, though not necessarily charter-proof. Justice department officials were told, Schmidt alleged, that if draft law were even five per cent consistent with the charter it would meet the mandated “credible argument” requirement. Schmidt, who lost his job as a result, also lost his suit in March.
“We’re seeing the results of what Schmidt talked about,” says Doob. “The Conservatives saw the charter as a constitutional impediment to what they wanted to do. If you see the charter in a different way, as a set of Canadian values, then you don’t use a five-per-cent test.”
Nicholson dismisses such talk. “All the laws we introduced, we believed that they would withstand (the charter). I would advise (cabinet) that we would pass the test on these. We brought forward legislation that we thought was fair and reasonable. We went forward with what we did in the area of crime because we believed in it.”
The court’s judgments have typically faulted the Harper government’s legislation for infringing on the constitutional rights of less blameworthy criminals caught up by laws intended for more serious offenders, and for reducing or eliminating judicial discretion and threatening the principle of proportionality — making sure punishments are in proportion to the crime committed.
“Everything that he (Harper) did that was tough on crime almost always involved a longer prison sentence or a prison sentence where there had never been one before — and was probably going to be counterproductive,” says Paula Mallea, a former criminal defence lawyer and author who has written extensively on the criminal justice system.
“You send people away for a long time or in circumstances when they really don’t deserve incarceration (and) create a total disconnect with those people from their communities and a lot of damage because of what happens to them inside because of the recruiting for gangs and drugs. You’re producing a situation where you’re going to end up with more crime more likely than less. And that means less public safety, not more.”
More contested Harper- era laws are working their way up toward the high court, though it’s a mug’s game to predict any outcomes.
Superior courts in B.C. and Ontario recently ruled that the six-month mandatory minimum jail sentence for possessing more than six marijuana plants is cruel and unusual punishment when applied to someone growing a bit of weed at home for personal use, rather than to commercial grow ops (read organized crime).
Other mandatory-minimums now enshrined in the Criminal Code, thought to number in the dozens, seem at particular risk.
Victim surcharges — fines levied on offenders that the government made mandatory in 2013 — is another Harper- era addition to the justice system some legal observers believe the high court will inevitably be asked to rule on.
And what has yet to become clear is the approach the new Liberal government will take to Harper’s criminal justice legacy, and whether it will dismantle legislatively what the Supreme Court does not or cannot.
In his mandate letter to Justice Minister Jody Wilson-Raybould, Prime Minister Justin Trudeau wrote that he wants a comprehensive review of the criminal justice system, including the Conservatives’ sentencing reforms.
Critics of the Conservatives’ efforts like Mallea want to see the Liberals be aggressive.
Charter challenges of individual cases on such issues as mandatory minimums is “a very expensive and slow and silly way to do this,” she says. “I’m hoping the Liberals will actually take these under control and repeal some of the bad mandatory minimums and the like.
“It’s costing us all an arm and a leg to get this stuff in front of the Supreme Court and they’re all obviously going to be overturned because they’re so silly.”
Doob says rather than go through the laborious process of repealing the measures, while ensuring the core statutes remain true to their intent, the government should enact a blanket “escape clause” by simply declaring mandatory minimums to be presumptive but not mandatory.
Time will tell how much of the Conservatives’ justice agenda survives. Nicholson doesn’t believe the Supremes will completely dismantle the reforms, but acknowledges, “We have to accept what the courts say.”
It seems clear that the Conservatives’ strong notions about crime and punishment — especially the punishment part — sometimes won out over concerns about breaching the charter, which they generally viewed as an excessive constraint on government.
In an effort to assert parliamentary superiority, Tory lawmakers chose to pay less heed to the charter than did previous governments. That led to more laws being challenged in the courts. And that has produced the ultimate irony of the post-Harper era so far: the more Conservative tough-on-crime laws fall, it seems, the more the charter and the Supreme Court gain in prominence and authority.