Harper is 'tough on crime' and the courts are tough on Harper

by Kyle Coady, PhD Student, Sociology, Carleton University

In 2014, Canadian courts rendered a number of judgements impacting the Conservative government’s approach to penal policy. This is not a new trend as the Supreme Court stopped the Conservative's attempt to close Canada’s safe injection program in 2011 which would have put an end to a stellar example of evidence-based harm reduction practices touted around the world.  The Conservative’s agenda has also been challenged in the non-penal domain when Harper’s proposed appointment of to the Supreme Court was found to be ineligible.  This ruling was followed by Harper’s public and widely criticized indictment of the Chief Justice of Canada, and it led to national and international calls for an apology from the Prime-Minister.

In some cases, judicial decisions have altered the spirit of legislation. For instance, under the Truth in Sentencing Act (2009), judicial discretion was limited in cases where there was credit for time served in pre-trial detention. In a unanimous decision, the Supreme Court of Canada restored some leeway for sentencing judges for people who spend time in pre-trail detention. In particular, the court noted that 1.5 to 1 credit can be given by sentencing judges.  The courts have also offered some critical commentary on government-endorsed penal policies.  For instance, in the case of Omar Khadr, an Alberta appellant court ruled that since 2012 Khadr has been illegally and unlawfully incarcerated in a federal prison and questioned the legitimacy of charges coming from a US military commission.

Courts have also declared laws to be unconstitutional, which has most recently seen in judgments concerning the mandatory victim fine surcharge. Under Harper, the mandatory victim fine surcharge forces judges to levy a 30% surcharge of a fine or a flat fee of $100 or $200 when there is no fine depending on the seriousness of the offence. Some judges, like Ontario's Justice Wadden, are unconditionally imposing the fines.  In other cases, judges have refused to apply the mandatory orders or they have imposed the mandatory victim fine surcharge orders using some creative conditions.  For instance, some judges have implemented a one dollar fine which leads to a thirty cent surcharge. Or, in other cases, judges in Ontario and British Columbia have allowed 10 to 99 years to pay the fine. Perhaps the most significant judgment on this issue was delivered last summer in Ottawa by Justice David Paciocco.  Paciocco ruled that the mandatory victim fine surcharge violates s. 12 of the Charter (cruel and unusual punishment) and is therefore of no force or effect.  In this case, Paciocco ruled the victim fine surcharge is unconstitutional given that imposing a $900 fine on "an alcoholic and drug addicted 26 year old Inuit street person" who owns nothing and lives off of $250 a month would be a "crushing burden... even if given time to pay" (also see Fine 2013).  In the face of these judgements the Minister of Justice Peter McKay has maintained that the poor, the homeless and the criminalized with mental health or addiction issues could sell some belongings or property to pay the mandatory victim fine surcharge.  

Similar unconstitutional declarations have been found in mandatory minimum firearms cases in 2013 and mandatory minimums for drug offences in 2014 (also see Pivot Legal Society 2015).  Common songs coming from Canadian courts tell the story of breaches to the rights to life, liberty and security of the person (s. 7), and cruel and unusual treatment or punishment (s. 12).

The emergence of constitutional challenges marks an important judicial response to the Conservative Government of Canada’s disdain for the independence of the judiciary and the political maneuvering that limits judicial discretion by promoting mandatory punitive policies on the criminalized. Despite losing legal battles and regularly being told they are not fulfilling their legislative duties within the boundaries of the rule of law, Canadians can expect to continue to see this practice that fills up court time, consumes individual resources and assumes equal access to counsel equipped to make complex constitutional arguments.  In 2015, Canadians can look forward to more cases to make their way to the Supreme Court of Canada whereby the constitutionality of Harper’s damaging legislative reforms and penal policies will continue to be tested. 

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