Pruning the living tree: Justice policy under Stephen Harper

*The”pruning the living tree” title comes from remarks given to the Globe and Mail by Professor David Dyzenhaus.

Justin Khorana-Medeiros (1L)

Stephen Harper is not a Prime Minister beholden to the past. He has charted his own course in virtually every policy field, from foreign affairs to the environment. His crime and justice program is no exception.

Prior to 2006, the justice portfolio had long been marked by bipartisan consensus. This consensus showed itself in the process and outcome of judicial appointments, respect for judicial discretion, and in a more technocratic than political approach to policy formulation. This consensus has been turned on its head in important ways, though there is debate as to whether the departure has been radical or marginal.

Playing Fantasy Football with the Judiciary

Traditionally, when making appointments to the bench, prime ministers would prioritize merit over ideology. Conservatives like Brian Mulroney appointed (small-l) liberals like Louise Arbour, Rosalie Abella, and Morris Fish. An effort was made to appoint a balance of prosecutors, criminal defence lawyers, commercial lawyers, and academics. One study by the Globe and Mail showed a remarkable continuity in the character of judicial appointments from 1984-2006, from Mulroney to Campbell, through Chrétien to Martin.

In the last nine years? Criminal defence lawyers and academics have become significantly underrepresented. The process tends to favour business lawyers and prosecutors, who can presumably be better trusted to carry out the Conservative “tough-on-crime” agenda. It has become “almost impossible” to get appointed from the political centre or centre-left, argues U of T Law professor David Dyzenhaus in an interview with the Globe and Mail. He argues that this ideology-and-occupation bias implies recruitment from a much smaller pool of lawyers, which “invariably means people of considerable ability are being passed over. The quality of the bench is going to be lower.”

What is the scope and effect of all this? The Conservative government has named around 600 of the 840 full-time federally appointed judges. Since most Supreme Court of Canada (SCC) judges are appointed from appellate courts, Harper’s judicial legacy will live on regardless of whether he wins the upcoming election.

Judicial Discretion: Who Needs It?

Anonymous sources involved with the appointment process under Harper noted that the keys to successful appointment involved being “reliable” and “deferential.” Indeed, Harper has long been a supporter of US-style “originalist” jurisprudence. His former Chief of Staff, Ian Brodie, and recent Ontario Court of Appeal (OCA) appointee Grant Huscroft (both former law professors) were active and public supporters of originalist doctrine, arguing that judicial review ought to be confined to exactly what the framers wrote down in the constitution. As Harper said in 2003, when the Federal Liberal government legalized gay marriage on the heels of various provincial court decisions: “I would point out that an amendment to the Constitution by the courts is not a power of the courts under our Constitution.” So much for the living tree.

The Conservative attack on judicial discretion goes beyond the appointment process. The Harper government has introduced 90 criminal justice bills, including two multi-part “omnibus” bills. Mandatory minimums have been a favourite, of which examples are abundant. The victim surcharge, which forces persons convicted of criminal offences (regardless of income) to pay a fine to the victim, is one such piece of legislation. It has attracted judicial ire to the point where judges in a number of provinces have allowed 50 years to pay, charged paltry sums, or struck down the legislation as unconstitutional.

Mandatory minimums and harsher penalties betray a paradigm shift in Canadian justice policy. It implies a belief that crime is more a product of individual choice than social conditions, and that punishment is more important than prevention and rehabilitation. This is why, for example, pardons are no longer available for many offences, including those that carry a relatively low maximum sentence (18 months). This despite the fact that Public Safety Canada data suggests that 95 percent of those who receive pardons never re-offend.

The new paradigm is that a criminal offence should stick to and handicap you for as long as possible. As Prime Minister Harper is fond of saying, “if you do the crime, you do the time.”

Mind over Matter

The Prime Minister’s dislike of evidence and expertise (see: the census, federal scientists) extends to justice policy. Research casts serious doubt on the idea that governments can reduce crime rates by increasing punishments or by imposing mandatory minimum sentences, note criminology professors Anthony Doob (U of T) and Cheryl Webster (University of Ottawa). Again, Harper’s predecessors of all partisan stripes recognized this and emphasized rehabilitation over imprisonment, so that more offenders would be better able to reintegrate into society.

The Conservative emphasis on political cosmetics over effective policy can be seen in countless other bills. One example is the government’s efforts to restrict parole. Former Justice Minister Vic Toews made much hay of eliminating the “faint hope” provision, whereby those serving life sentences could have their parole ineligibility period reduced by a jury. Yet, on average, only six people a year received shorter parole ineligibility periods under this law.

Trumpeting its plan to clean up Canada’s streets, in 2006, the Harper government introduced legislation increasing mandatory minimum sentences for first-time violent offences with a handgun or prohibited weapon from a meager four years to a whopping five years. Of course, that extra year will deter an unimaginable amount of would-be violent offenders from using a gun. At least we can all feel safer knowing somebody got a great press conference out of it.

We should decry symbolic “tough-on-crime” measures not only because they are effete, but because they distract from serious justice problems in need of redress. For instance, there is a huge bail and pre-sentence custody problem. Thirty five percent of all prisoners in Canada are awaiting trial (55 percent of provincial prisoners). There is potential for great injustice here, given that these accused, who are presumed innocent, are being deprived of liberty for long stretches of time waiting for a court date.

In sum, as imperative as it may have been to create new offences for harming police animals in the line of duty (the Justice for Animals in Service Act, 2014), there are more critical challenges out there.

The Grain of Salt

Lest this piece be misconstrued as alarmist, partisan fear-mongering, let us be clear: the Charter is not in tatters, judicial independence is not crushed, and there is no two-year minimum sentence for spitting gum on the sidewalk. Indeed, some Conservative-appointed judges have struck down Conservative crime legislation. Statistically speaking, there has only been a slight rise in more severe criminal sentencing, and Canada has neither a crime crisis nor, as of yet, an imprisonment crisis on par with that of our southern neighbour.

At the same time, this was not intended to be an exhaustive list of questionable justice policies by the Harper government. Such a list would include the reluctance of Conservative judicial appointees to review refugee claims, Prime Minister Harper’s willingness to publicly comment on the outcome of a particular case (Khadr), and the lack of a strategy to tackle Aboriginal over-representation in penitentiaries, among others.

My purpose here was to underline that there has been a serious readjustment in justice policy over the last decade, and to question whether it has been for the best. Let no cynical millennial mislead you; it does matter who you vote for, particularly for those whose lives might be ruined (or helped) through our criminal justice system.

This article is the first in a 3-part series on politics and the judiciary.