Hallelujah! The Supreme Court is dismantling key parts of Steve Harper’s legacy

How the Supreme Court is dismantling one of the key parts of Stephen Harper’s legacy by Ian MacLeod, April 21, 2016, Ottawa Citizen in Calgary Herald

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.

… 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.

… 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.

… 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….

Superior courts in B.C. and Ontario recently ruled that the six-month mandatory minimum jail sentence for possessing more than six marijuana plants is cruel and unusual punishment when applied to someone growing a bit of weed at home for personal use, rather than to commercial grow-ops (read organized crime).

“It’s costing us all an arm and a leg to get this stuff in front of the Supreme Court and they’re all obviously going to be overturned because they’re so silly.”

… Time will tell how much of the Conservatives’ justice agenda survives. Nicholson doesn’t believe the Supremes will completely dismantle the reforms, but acknowledges, “We have to accept what the courts say.”

… In an effort to assert parliamentary superiority, Tory lawmakers chose to pay less heed to the charter than did previous governments. That led to more laws being challenged in the courts.

And that has produced the ultimate irony of the post-Harper era so far: the more Conservative tough-on-crime laws fall, it seems, the more the charter and the Supreme Court gain in prominence and authority.

Stephen Harper's Supreme Court

2016 03 02: Former justice department lawyer loses Charter lawsuit against minister

… And he implied that Mr. Schmidt had been naive about how politics works. “Why would a government declare openly, through a report from the Minister of Justice addressed to the House of Commons, that the bill it is introducing violates the Charter or the Bill of Rights?” 

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