Wednesday August 20, 2014

Judges’ Charter challenges continue


Are we headed for a constitutional showdown in Canada?

Last week, a British Columbia judge sentenced a petty drug dealer from Vancouver’s lower east side to 191 days in prison, well shy of the one-year mandatory minimum provided for in the federal government’s 2012 Safe Streets and Communities Act. The defence successfully argued the law is contrary to Section 12 (cruel and unusual punishment) of the Charter of Rights and Freedoms.

Judges in BC and other provinces have also challenged other aspects of recent Conservative legislation including the convention of giving 1.5 times credit for time-served (Truth in Sentencing Act) and doubled mandatory victim surcharges (Increasing Offenders’ Accountability for Victims Act).

At first glance, it may be tempting to view the judges making these decisions as disgruntled because the new laws erode their discretion and independence, but I think there is something much more fundamental at stake here.

I’ve struggled in the past with why the Conservatives are so eager to pass legislation that they know, or at least ought to know, is headed for constitutional challenges.

But let us not forget that this is the party that brought us the likes of Randy White, MP for Langley-Abbotsford from 1993 to 2006. Some political pundits went so far as to say White may have cost the newly-minted Conservative Party of Canada the 2004 election when he said “to heck with the courts” on the issue of overturning same-sex marriage.

Stephen Harper was  no less radical and a lot of Reform’s early success came from discontent over the constitutional wrangling of Meech Lake and Charlottetown.

Harper proved to be  nothing if not pragmatic, however. Following the narrowest victory in Canadian political history in 2006, and during his subsequent 2008 minority, Harper basically governed like a more traditional conservative, that is, fiscally conservative.

Occasionally, a Rob Anders, Maurice Vellacott or Stephen Woodworth would blow up in Harper’s face, but, for the most part, he was able to keep the social conservative agenda off the front pages.

Make no mistake, though, neo-conservatism in Canada remains a populist social conservative movement, which has always been frustrated by the Constitution and Charter.

For example, the opposition parties love to point out that Harper has always campaigned on Senate reform, but in eight years of government has failed to make any meaningful change to the Red Chamber aside from stacking it with hyper-partisan Conservatives. That is somewhat unfair because, as the government has found out, it is simply not an easy thing to do. That is precisely why we have laws such as the Charter and independent institutions such as the courts, to prevent any government from fundamentally changing the nature of Canadian democracy by a simple majority vote of the House of Commons.

It is a populist notion that that is the way democracy is supposed to work, by majority rule, but it is much, much more complicated than that, particularly with the first-past-the-post party system we have in Canada. The largest majority government in history, Brian Mulroney’s 1984 landslide, barely cracked 50 per cent of the popular vote. The current majority government got in with just 39.6 per cent, only three points higher than Harper’s first minority, which, as I mentioned before was the smallest ever.

The government is currently cramming through legislation as if its days are numbered, which they might well be. Agree or disagree with what they are doing, it is a smart move. A lot of it may be tied up in the courts for a generation or more, but in the meantime, it is the law of the land by the will of Parliament and won’t be easy for future governments to disentangle because most voters are much more concerned with issues that have a direct impact on their daily lives.



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