RESPECT THE RULE OF LAW
Canada’s Supreme Court has again struck down criminal laws enacted by a democratically elected and accountable parliament, which were genuinely intended to reform our criminal j ustice system. These reforms were intended to re- balance our justice system to ensure greater accountability for offenders and to place victims in the central role they rightly deserve. This was the impetus for the groundbreaking new Victims Bill of Rights, and the expansion of the incredible work of youth and child advocacy centres, all of which are positively recalibrating our justice system.
Over the last decade, the Supreme Court has often seemed at odds with elected governments over legislation designed to emphasize enforcement of the rule of law and reflect the public demand for greater accountability.
The protection of the public from dangerous and repeat offenders has long been a subject of discussion and criticism in our criminal justice system. Through a democratic and consultative process, the previous government passed measures focused on deterring weapons related offences, violence, and sexual assaults, particularly on children. Many share the view if you commit offences such as these and others which are damaging to our community, there should be a mandatory minimum period of incarceration to send the message of our shared abhorrence of such behaviour and to recognize the impact that this crime has on child victims and all of us. A floor of a minimum sentence sends a message from society to would- be offenders and preserves our respect for victims. These minimums were certainly not an invention of the previous government. Indeed, they have been around as long as the criminal code itself and are used by many jurisdictions in our sister democracies.
Mandatory minimum sentences for certain offences do not discard role of judges. Instead they prioritize certain valid sentencing considerations, including denunciation, general deterrence, and appropriate punishment. Mandatory minimums democratically set a stable sentencing range for an offence, permitting members of our communities to understand in advance the severity of the penalties that will be handed out if they commit a certain crime.
As the dissenting justices expressed last week, “mandatory minimums are a forceful expression of governmental policy in the area of criminal law,” and “Parliament is owed substantial deference in crafting mandatory minimum sentences.” Longstanding Court precedent holds that is only on “rare and unique occasions” that a minimum sentence will infringe an individual’s Charter rights to be free from cruel and usual punishment.
Such a high threshold for overturning mandatory minimum sentences is grounded in sound democratic values. It forms part of Parliament’s fundamental role to decide, within constitutional limits, which sentencing objectives to prioritize in relation to certain offences that deeply impact our communities, including gun crimes and repeat drug trafficking.
The court certainly must strike down unconstitutional legislation, but some of its decisions have been described as judicial activism that goes beyond the court’s constitutional role and diminishes the role of democratically elected members of Parliament. These decisions have undone legislation that was front and centre during election campaigns and rigorous legislative and consultation processes.
As Supreme Court Justice Michael J. Moldaver has said, “Under the rule of law, it is not our function to create laws, nor do we have the right to direct governments on matters of policy. Under the Constitution, we have been given the authority to determine the legality of laws passed by Parliament and the legislatures ... In fulfilling that role, we must never lose sight of the fact that we are being asked to strike down laws that had been enacted by a democratically elected majority of parliamentarians.”
Indeed. And yet, recently, the Court ruled, while upholding the actual one- year sentence, that mandatory minimums for repeat drug traffickers amounted to cruel and usual punishment. The decision overturns Criminal Code reforms under the Safe Streets and Communities Act, which set the minimum end of the sentencing range at one year for people convicted of more t han one drug trafficking offence within a 10- year period. And to be clear the offender in this case will likely serve less than half that time and be subject to early release.
Lost in the activist celebration in some circles are the basic facts. Recidivism rates in some areas of our justice system are on the rise and public confidence in our system is waning and turning victims in particular away from reporting.
In a separate ruling the same week, the Court ruled that a convicted criminal who has been denied bail at the pre- trial stage because of prior convictions should receive credit for time served before sentencing. Under the previous government’s Truth in Sentencing reforms, introduced in 2009, if the decision to deny bail was based on the accused’s previous convictions, that person could not later get credit at sentencing for the time they spent in custody awaiting trial. I believed then, and now, that this approach exhibits consistency and appropriate recognition of prior bad behaviour.
These companion decisions mark another so-called victory for those who believe the Supreme Court should regularly override or ignore the essential democratic pillar of our democracy. But most Canadians expect that if you continue to commit further offences, the penalties go up. If an offender demonstrates that rehabilitation does not work for him, it is folly to try the same sentence as for the first crime, and expect a different result.
This is not a “tough on crime” argument as much as it is an issue of properly recognizing the rule of law, the separation of powers, and parliament’s democratic mandate to protect the public, including in response to the evolving needs in areas such as child exploitation, human trafficking, and the effects of drug trafficking and Internet crime on our children.
Today one branch encroaches on another over mandatory minimums or truth in sentencing. Let the next activist victory not be at the expense of society’s most vulnerable.
RECIDIVISM RATES IN SOME AREAS OF OUR JUSTICE SYSTEM ARE ON THE RISE. — MacKAY THE SUPREME COURT OFTEN SEEMS AT ODDS WITH ELECTED GOVERNMENTS OVER LEGISLATION DESIGNED TO PROTECT THE PUBLIC AND INCREASE ACCOUNTABILITY.