It will never matter who we elect as long as the Supreme court can overturn any changes as they did in the past few years.
How the Supreme Court is dismantling one of the key parts of Stephen Harper’s legacy
Ian MacLeod, Ottawa Citizen | April 22, 2016 | Last Updated: Apr 22 4:50 PM ET
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.
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.
“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 liberal-minded 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.
Handout/RCMPPolice-killer Justin Bourque
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. (When the Tories took power in 2006, there were more mandatory minimums for gun-related crimes than any other crime in the Criminal Code with the exception of murder.)
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 Conservatives’) 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 three-year-old law that retroactively lengthened the amount of time non-violent, first-time offenders spent in jail, which the court declared double jeopardy. (It followed the striking down of the country’s long-standing prostitution laws, which the government had argued should stand. The anti-prostitution law the Conservatives introduced in response to that defeat may also be headed for a constitutional challenge.) 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.