The Conservatives' Contempt for Courts

It should come as no surprise that the Conservative government is appealing the Federal Court's ruling on the repatriation of Omar Khadr.  There is a strain of anti-judicial thought within the Conservative Party and it is manifesting itself in a number of ways. 

Remember Randy White the former Alliance MP?  Remember his “to heck with the courts” comment during the 2004 federal election when he went on to state that the Conservatives would simply invoke the notwithstanding clause if they didn't like a court's interpretation of the law?  Or, perhaps you remember Stephen Harper in Lévis, Quebec during the 2006 federal election stating that a Conservative majority was nothing to fear because the liberal courts would be a check upon the Conservative government and significantly limit their ability to operate. 

Since the Charter, we have seen a number of concerns regarding activist judges on the bench who are said to exercise too much judicial discretion.  These moderate critical approaches, however, are occasionally accompanied by a more radical attempt to exert the influence of the legislature over the courts in inappropriate ways.  And, I would suggest, Harper's goal of structural change to Canadian democracy involves a significant adjustment in the division of powers that represents this inappropriate contempt for courts. 

A responsible government is a government that knows its limits.  We do not want politicians running our businesses – this is why we have a free market.  We do not want politicians performing open-heart surgery – this is why we have surgeons.  Likewise, we do not want politicians deciding matters in our criminal courts – this is why we have judges. 

The Conservatives' contempt for courts is manifest in a number of disturbing ways.  Most recently, we have seen a challenge to the Federal Court concerning its ruling on the repatriation of Omar Khadr.  Not long ago, Justice O'Reilly ordered Ottawa to seek the repatriation of Mr. Khadr because the failure to do so offends a principle of fundamental justice.  That same day, however, Harper stated in Question Period that the federal government will be “looking at the judgment very closely and obviously considering an appeal.”  About a month ago, government lawyers filed the appeal. 

The contempt for courts can also be seen in the Conservatives' favored “get tough on crime” measure – mandatory sentencing.  Simply put, mandatory sentencing means that the legislature creates minimum levels in the length of sentences below which a judge cannot go. 

Limitations on trail judges may be found in a number of bills put forward by the Conservative government.  For example, the “Omnibus Crime Bill” that received royal assent last February contained mandatory sentencing for over a dozen firearms offences.  Bill C-15 (referred to the Standing Committee on Justice and Human Rights last month) would impose mandatory jail time for producing and selling illegal drugs.  Bill C-25 (“Truth in Sentencing Act”) would limit the credit that a court may grant a convicted criminal for time served in pre-sentence custody.  Unfortunately, the list goes on...

Never mind the fact that the Conservatives’ mandatory sentencing is adding approximately $80-million per year to the price of justice in Canada, legislating sentences takes away discretion from the trial judges and does not allow them to tailor the sentence to fit both the crime and the criminal.  For example, a 5 year minimum sentence means that a judge cannot give a sentence of less than 5 years even in extraordinary circumstances. 

The issue is one of institutional competence.  Trial judges are experts in handing out sentences for criminal convictions and, because they can observe the accused and hear all the evidence first hand, they are best-suited to ensure an effective and just sentence is handed out.  Indeed, under the guidelines within the Criminal Code, judges are to take into consideration a number of principles and purposes behind sentencing when determining the appropriate sanctions.  For example, not only should a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender, but a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. 

It is time for good governance in Ottawa.  But, good governance involves an understanding of various institutions and their unique areas of competence.  Simply put, our representatives in Ottawa need to recognize that they are ill-equipped to do the work of the trial judges across this country.  They need to mature as a party, get over their contempt, and begin a constructive relationship with the judiciary.  Good governance demands nothing less. 

Jared Giesbrecht

Justice Critic, Green Party of Canada