Harper fought the law and the law won
The Harper government and the Supreme Court of Canada do not mix, as the court’s new ruling against mandatory minimum sentences for certain gun crimes confirms. The blandest metaphor I can come up with is the two had a bad divorce, but of course they were never married in the first place. The court has principles, the government has ideology. They couldn’t have made it through the arrival of the menu at a dinner date; no restaurant concept could suit two institutions so ill-matched.
“I’ll have the mandatory minimum.” “Yeah, well I’ll have the buffet.” “Fine, I’ll have what Your Honour’s not having.”
I’d go further. The Supreme Court is a panel of nine judges backed by a thick wall of case law — they are mandated to use it — and appearing before them is Stephen Harper, a man with rage issues but little respect for legal precedent.
Despite Harper’s trail of defeats in the Supreme Court — and this is a huge one — I don’t think he sets out intentionally to distress the justices. The Canadian court is unlike the American one in that it does not react petulantly or store up revenge. It’s more that Harper and ill-trained Justice Minister Peter MacKay lash out wildly in all directions and are serially restrained by the court.
Ideologically, Harper claims to favour small government, but his taste for punishment leads to bigger and more costly government: more jails, more jailing, more solitary confinement, and so on. This is the American style. It doesn’t work here.
In the gun crime law that failed, Harper’s urge to punish outstripped not just Canadian law but the desires of his own base, the core of which are the gun-owners of rural Canada. Harper’s mandatory minimum jail sentences for some crimes involving guns could have meant year-long prison sentences under summary conviction, three years if the Crown decided to proceed by indictment. Whether the crime was major or relatively minor, it still led to jail.
As the legal journalist Sean Fine has elegantly explained, the court referred to the “reasonable hypothetical” principle, that a law might refer not just to one case but to hypothetical others that would lead to injustice.
To me, this is a variation of the great legal truth, that hard cases make bad law: you don’t treat every killer as if he were Col. Russell Williams. But easy cases make bad law, too. Not every gun or drug crime is the same. Some are more serious than others.
Surely the point of a Supreme Court is to envision judicial disasters that occur when prosecutors have too much power and judges too little
Under minimum mandatory sentencing, the whim of a Crown Attorney could mean, as Fine wrote, that “an otherwise law-abiding gun owner who stored a firearm in a dwelling contrary to the terms of his licence” could be jailed for three years, in the same way that a teenager could, say, be jailed for one joint. Yes, it’s a drug crime, but a tiny one.
I say even one year might be unjust for a relatively minor offence, but it’s up to a judge, not a prosecutor, to decide and to make his reasoning public.
All of Harper’s mandatory minimum sentencing laws resemble each other in that they chip away at judges themselves. In his world, judges — who exist to state reasons out loud, to balance punishment with mercy — might as well not be in the room.
In the 6-3 ruling, Chief Justice Beverley McLachlin wrote for the majority in R. v. Nur that mandatory minimum sentences are a “blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of the sentencing range.” She wrote further that they may damage the “principle of proportionality. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.”
Justice Michael Moldaver offered a fascinating dissent, saying the court should defer to Parliament, which might well work in a functioning democracy. Referring to reasonable hypotheticals, he wrote: “It is not for this court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture.” I would call this the child’s view, in other words, that unfair sentencing could never happen because it hasn’t happened yet. If Moldaver closes his eyes, he can’t see it. This is nice for him — he clearly thinks the best of people — but nasty for the adults.
Surely the point of a Supreme Court is to envision judicial disasters that might occur when prosecutors have too much power and judges too little.
McLachlin says, “Let’s be reasonable.” Moldaver says, “It might never happen.” Harper says, “Go to jail.”
I grew up with guns, loathe guns, and, like Quebec, yearn for the gun registry Harper destroyed. I am anti-gun, possibly unreasonably, but even I think this government is being too hard on people who violate gun laws. Secure the guns, don’t jail the offenders.
Harper’s problem is that he fought the law, and the law won. It’s an odd position for a prime minister who loves law in its most crushing forms. Note: Toronto cyclist Randi Beers, 32, who got a ticket in 2010 for not having a bell on her bike but didn’t pay it and the fine until 2015, politely took issue with my April 12 column on the subject, and I’m happy to clarify. Rather than laughing at the news, Beers’ mother “sympathized.” Her mom sounds nice. And Beers had told me in an interview that 30 was the age of adulthood, when moms can no longer tell you to pay a ticket. She didn’t say 30 was the age at which one becomes the type “who pays tickets.” Beers did pay up after she lost her licence. Opinions still vary about the age of adulthood.