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Blame Lawmakers Not The Supreme Court

Earlier this week, Canada’s Supreme Court ruled that the Harper government’s mandatory sentencing provision for illegal possession of a prohibited firearm was unconstitutional. Contrary to popular belief, they did not oppose mandatory sentences on all crime; the ruling dealt strictly with the clause dealing with  prohibited firearms

This is a fine point that is lost on partisans, of course. For them it is as simple as the fact that the Court has ruled against ‘their guy’ – again.

What hogwash!

The Constitution and the Canadian Charter of Rights and Freedoms are the supreme law of the land. It is the responsibility of the Supreme Court to protect our rights and our democracy from any government legislation which violates that law. It falls to the Court to interpret the law in a politically neutral manner rather than through the lens of political opportunity.

Clearly, in this country, it is a thankless task.

The Supreme Court is not the final authority, Parliament is and the government can overrule the Supreme Court simply by invoking the Notwithstanding clause from which there is no appeal. That would mean that the Supreme Court’s ruling would be set aside for five years, at which point the government of the day would be required to either reaffirm the Notwithstanding clause or amend the law.

Quebec did exactly that when the Supreme Court ruled that its language legislation, Bill 101, was unconstitutional. The Court’s ruling was rendered moot and the law stands.

There could be a political price to be paid for invoking the Notwithstanding clause, however, and most governments are averse to the risk of a public backlash so it’s just easier for politicians to blame the Court than stand up for legislation in which they claim to believe.

Led by some in the media, the condemnation has been loud no doubt in the belief that volume is appropriate compensation for a lack of constitutional or legal knowledge. The National Post’s John Ivison decries the politicization of the Supreme Court. Others rail that it is to liberal in its rulings.

Considering that fully 2/3 of the justices on the Supreme Court were appointed by Conservative Prime Minister Stephen Harper, it’s not a very strong argument. I would suggest that if his own appointments are ruling against him it just might be time for Stephen Harper to consider whether or not his vision of Canada is constitutional rather than just an old Reform Party fantasy.

The Globe and Mail ran an editorial entitled “Supreme Court guns down good law on mandatory minimums”. It’s a clever pun but bad journalism and the evidence of just how bad is found within the editorial itself.

It starts out by stating:

“Sometimes, even the Supreme Court gets it wrong. On Tuesday, it did just that on the issue of mandatory minimum sentences in firearms cases. The majority of the court voted to strike down the mandatory minimum sentences of three years for gun possession, and five years for possession by repeat weapons offenders.”

First, it was not ‘in firearms cases’ it dealt with cases involving prohibited firearms only. You’ll also note the use of the phrase “strike down”. This is important to note because the editorial ends like this:

“The Supreme Court didn’t strike down mandatory minimum sentences. It insisted that they be carefully tailored to the crime. Make it so.”

In other words, while the headline and much of the editorial was intended to give the impression that the Court had struck down the law, in fact, the Supreme Court made a very narrow ruling about one provision in the law.

It’s more than a little schizophrenic to argue that the Court did and didn’t strike the law down in the same editorial but then that pretty much describes the entire debate over the Supreme Court. It’s schizophrenic. We are only too happy to demand that the rights guaranteed to us in the Charter are respected but terribly annoyed when the Court actually does exactly that when we don’t happen to agree with the decision.

The fact that we don’t necessarily understand how our rights are being protected by a particular ruling doesn’t mean they aren’t being preserved by it.

Personally, I think mandatory sentences are bad policy because not all crimes are the same but if Parliament passes legislation to make them law, I accept that and so does the Supreme Court as is clearly stated in ruling. What the Court is not permitted to accept constitutionally is poorly crafted law that can be used indiscriminately against citizens in violation of their rights.

I not only agree but am thankful for it and so are a majority of Canadians.

The simple fact is that the Harper government has dozens of constitutional lawyers working in the Justice Department and has access to constitutional experts across the country. It was warned before enacting the law that in its present format the law was unconstitutional but the government chose to ignore those warnings and went ahead for purely political purposes.

We cannot allow our laws and our rights to be subject to political whim or to be based on little more than political opportunism. It is clear that the court would have upheld the law if the government had put a touch more rigour into its responsibility to craft good legislation rather than, as it did, playing to its base with legislation that was more self-serving politics than law.

The fact that Parliament is elected does not give it the right to enact laws that are unconstitutional or that violate our rights. The fact that Court is not elected does not meant that it is incapable of examining the issue before them in an objective and politically neutral manner.

If anything, it enhances it.

It is precisely because politicians are prone to politics that we have a constitution to protect us in the first place and a Supreme Court to ensure that our Constitution isn’t violated.

Even the likes of Conservative Paul Calandra and the NDP’s Pat Martin managed to get themselves elected. Try to imagine the result of them being elected to the Supreme Court. Consider the kinds of rulings influenced by a David Suzuki or a Dalton McGuinty were they elected to the Court.

And before you tell me that we would only elect qualified people, give your head a shake. Our track record of electing only qualified people to Parliament and provincial legislatures isn’t all that good. Allison Redford and Kathleen Wynne are just two examples that come to mind.

Electing members to the Supreme Court would turn it into just one more political circus and surely to God we have enough of those already.

Consider too what would happen were a Conservative government be elected to Parliament but seven or eight NDP/Liberals to the Supreme Court. The political infighting would virtually render our system of government so dysfunctional as to be virtually useless. If a majority of elected justices were of the same political party as the government of the day, the opportunity to turn the Court into a rubber stamp for the government would be a serious threat to protecting our rights.

We elect governments to make wise decisions when making appointments although it appears that those who support electing judges don’t trust our political leadership to do a very good job in making them. The irony, of course, is that the majority of support for electing justices comes from supporters of the Harper government – the same government that appointed a majority of the justices now sitting on the Supreme Court.

If we don’t trust the people we elect to make good appointments then change the vetting system. Involve all of Parliament in real hearings to interview prospective candidates rather than the powerless farce the Harper government put in place. Strike an independent vetting committee. Require the Prime Minister of the day to select only from qualified candidates put forward by the Canadian Bar Association or get the provinces involved to make recommendations for appointments from provincial Bars.

At the end of the day, there is no perfect solution but of all of the options available, politicizing the Court by electing judges is the worst.

The Supreme Court is not intended to be an arm of the legislature nor subservient to it. The Supreme Court is a separate branch of government and it must retain its complete independence and autonomy to be effective. If justices are dependent on popularity and political influence to hold their seats on the Court, the independence of the Court is lost and we end up with just one more political entity working for its own ends.

Surely to Christ we have enough of that with the House of Commons and the Senate!

I would suggest that if the current government wishes to pass legislation that will not be struck down, it do its homework and then craft the law carefully so that it meets both the government’s objective and falls within the framework of the Constitution. The half-assed approach taken by the Harper government and, to be fair, some former Liberal governments, is the real reason why the Supreme Court makes the types of rulings it made this week.

Blaming the Supreme Court rather than sloppy lawmaking isn’t going to change that simple fact no matter how often the blame is stated nor how loudly.

It’s time to grow up kids and start facing the issues before us like adults rather than like petulant children who didn’t get their own way. Our Constitution, indeed our very rights and freedoms are too serious to be treated so frivolously.

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© 2015 Maggie’s Bear

all rights reserved The written content of this article is the sole property of Maggie’s Bear but a link to it may be shared by those who think it might be of interest to others

Twitter: @maggsbear – Facebook: Maggie’s Bear  – ivmaki@sympatico.ca

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  • MaggiesBear

    The Senate is part of the Legislative Branch of government. It has been turned into a reward for party hacks and bagmen and the current Prime Minister appointed 58 of them. The Supreme Court is a separate branch of government that like the other branches is constituted and must function according to the law as set out in the constitution. The elected body still has the right to overrule a court ruling using the notwithstanding clause or to change the laws using the amending formula in the constitution. The fact that most governments lack the will or the balls to do that should tell you something about them.

  • MaggiesBear

    The Supreme Court doesn’t meddle at all. It only rules on cases brought before it like the case the Harper government brought regarding Senate reform. The Supreme Court does not prowl the land looking for cases it can initiate to thwart the government of the day.

  • charlie98

    Just so I understand you say that our record of electing people to Parliament is not that good and yet those same people are quite capable of selecting unbiased judges.

    It’s my option that recidivism rates give a hint as to why minimum sentences are required. You can argue what the minimum should be but you cannot deny that while being confined the offender is not further endangering the public, that happens when the offender is subsequently released.

    Imagine if unelected judges were held accountable for the consequences of their decisions. Somehow I think they’d error on the side of caution so as to protect their own behinds. Right now it’s the public that bears the brunt of bad decisions, not the decision makers.

  • Joe

    So the court has to make up a fictitious case to make its point and you don’t think the court is biased? Sorry old chum but I believe you have the situation reversed. The court not the law is ‘bad’.

  • oldwhiteguy

    I would like to suggest that the court is not a bias free group. their decisions during the last few years have been political and far from necessary. there is nothing wrong with mandatory sentences. the constitution was written by lawyers for lawyers and offers very little in the way of protection for Canadian citizens. there is not one part of it that cannot be overridden. the court that is appointed even told the PM that he could not appoint someone they did not approve of. I am sure many will say I am simplifying things but I think we have to do just that. truth is never complex.

    • MaggiesBear

      First, the court did not rule against mandatory sentences. They upheld them. They ruled against one, very small provision regarding prohibited handguns and the ruling was that the government clarify it.

      We have a constitution that was produced by politicians at both the provincial and federal levels from all political parties. It is the basic rules of the game. The Supreme Court is required to act as referee based on those rules. If politicians don’t like the rulings they can either invoke the notwithstanding clause which overrules the Supreme Court’s decision or they can change the rules according to the amending formulas set out in the constitution. Blaming the court is absurd.

      • oldwhiteguy

        and that ruling changes everything. the supreme court should never be able to override those who put them in power and they should never be able to override the people.

        • MaggiesBear

          The Supreme Court was put in place to ensure that a government did not operate outside of our constitution. Imagine what could happen if the government of the day had no check against its power. There isn’t a democratic nation on earth that doesn’t have that check and balance in place.

          • oldwhiteguy

            that check and balance is not working properly as ideology is skewing decisions. America is a classic example of the court creating law. the court in Canada does the same thing and it is not supposed to do that.

            • MaggiesBear

              Putting our freedom in the hands of a group of politicians that have nothing to restrain them is folly. You might want to consider what happened in Germany once the democratically elected government of Adolph Hitler passed the Enabling Act which pretty much removed any check on his authority.

              • oldwhiteguy

                I want a check on the court’s authority. on this we will differ.

                • MaggiesBear

                  They do have that check. It’s called the notwithstanding clause but we can agree to differ on the issue.Either way, we do agree that there is some serious reform needed in government these days.

  • Pingback: Blame Poor Law Not The Supreme Court | Grumpy Opinions()

  • Rodney Hardwood

    What a good and thoughtful post. If only we had more people, of all political stripes, making reasonable arguments like this, we would all be better off. Instead we know have a situation where everything seems to be a knee jerk partisan reaction. “Our guy can do no wrong, your guy can do no right”

    • MaggiesBear

      Thank you for the kind words. I appreciate them and that you took the time to read my post.