The Harper government's tough on crime agenda suffered yet another defeat this week. Expect to hear more heated rhetoric about Canada's biased judicial system from Mr. Harper. But, Michael Spratt writes, judicial activism isn't killing the government's crime legislation. Stephen Harper is:
The federal Conservatives have reduced criminal justice policy to a simple flow chart. Step one: Promise ‘tough on crime’ legislation that’s easy to sell to the Conservative base. Step two: Table the bill while ignoring the advice of experts (both inside and outside the Justice department) arguing the new law would be both ineffectual and unconstitutional. Step three: Cling like grim death to the talking points, at least until step four — when the Supreme Court strikes the law down. Step five: Cry ‘judicial activism’, then refer to step one.
The pattern is always the same; only the bills change. The results speak for themselves — for the Harper government, one defeat after another in the nation’s highest court. They’ve been in power since 2006. They really should be getting better at this by now.
But they aren't -- even if their own lawyers tell them their legislation won't pass constitutional muster:
Had they been listening, they would have gotten an early indication that the legislation was unconstitutional from their own Parliamentary Information and Research Service department, which warned that “mandatory minimum terms of imprisonment are generally inconsistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” — and minimum sentences “may constitute cruel and unusual punishment in violation of the Canadian Charter of Rights and Freedoms”.
They didn't like that message, however, so they simply ignored it. And, quite predictably, the Supreme Court told them they got it wrong:
The court did not simply hold that the minimum sentences are a poor policy choice. It found that these minimum sentences amount to cruel and unusual punishment — that the legislation offends standards of decency by imposing sentencing as a “blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range”.
The court also found that, under the 2008 law, an otherwise law-abiding person storing an unloaded, restricted firearm at his or her home would be treated as a hardened criminal and hit with a minimum prison sentence for a minor licensing infraction.
Some would call the Harperian approach to criminal justice insane. Others would call it stupid. It's both.