Ultra Vires


Fiat Justinia? Justice policy under Trudeau II

Justin Khorana-Medeiros (1L)

In the Munk leaders’ Debate this federal election, Justin Trudeau expressed pride in certain big-ticket political legacies of his father, including multiculturalism and official bilingualism. Prime Minister-designate Trudeau should take as much pride in Trudeau Sr.’s impressive legal legacy. From decriminalizing homosexuality to liberalizing divorce laws, legalizing contraceptive pills to reducing draconian mandatory minimums for drug crimes, authorizing breathalyzer tests to imposing gun control laws, Pierre Trudeau (a former law professor and lawyer) spearheaded the most progressive justice policy initiatives of any politician in Canadian history. How will his progeny’s policies measure up?

“We will make the Supreme Court appointment process more transparent.”

Ironically, an all-party Supreme Court of Canada (SCC) appointment process was a perennial Harper campaign pledge in the early-to-mid 2000s. Indeed, upon his election Mr. Harper made some movements to create such an institution, but ultimately left it powerless to effect real change, before abandoning it altogether. Nonetheless, it was unfair of Trudeau to claim that Harper “disrespected and degraded” the all-party appointment process, since it has never traditionally been a part of Canadian politics to begin with. We will have to wait and see how close to a US-style highly publicized (and politicized) ‘vetting’ process Trudeau wishes to bring us.

“We will ensure that all those appointed to the Supreme Court are functionally bilingual.”

Mr. Trudeau has stated he will go beyond the constitutional requirement to appoint three SCC justices from Quebec to ensure that all appointments to the highest bench are bilingual. While this is great news for Quebecers and French Immersion grads generally, it is unclear whether this will actually improve the quality of decision making at the SCC. Some argue that the Anglophone justices already have access to the best translators in Ottawa, and that this practice would exclude high-quality justices from the bench.

 “We will legalize, regulate, and restrict access to marijuana.”

During the election, Mr. Trudeau promised that at least the decriminalization of marijuana would occur within “a year or two” of taking office. This would means less stress on the justice system, less stress on police forces who must currently commit resources to combatting a victim-less crime, and less stress on the prison system—not to mention the ramifications for Canadians barred from the labour market by criminal records for small possession convictions.

“Reinstating the Court Challenges Program of Canada cut by Stephen Harper.”

One promise that attracted little attention during the campaign was Trudeau’s pledge to reinstate the Court Challenges Program (CCP) of Canada. The program, which provided funding to ‘test cases’ that sought to advance minority rights (language, equality, inter alia) was eliminated in 2006. The program addressed the access to justice crisis in Canada by enabling the disenfranchised to bring constitutional challenges normally reserved for large corporations and wealthy individuals. One notable case was Harper v. Canada (AG), a kind of Canadian Citizens United, where the CCP funded intervenors to argue for upholding the constitutionality of election spending limits. Yes, the Harper in the title of this case is the Harper you are thinking of.

Trudeau’s funding pledge at $5 million is slightly under what the program was receiving nine years ago ($5.5 million) and significantly less than the $11.2 million promised by Stéphane Dion. Nevertheless, the funding is a step in the right direction. It will have major consequences for anyone interested in using their law degree for public interest or social justice.

“We will give more support to survivors of domestic violence, sexual assault, and sexual harassment, and ensure that more perpetrators are brought to justice.”

Trudeau has promised to implement a comprehensive gender violence strategy in concert with the provinces. This will involve increasing investments in shelters and transition houses, as well as amendments to the Criminal Code. The Criminal Code amendments will toughen bail requirements for those with previous convictions for violence against their partners and make intimate partner violence an aggravating factor. No word yet on restricting the ability of defence lawyers to vigorously cross-examine sexual assault victims who take the stand (an idea floated by Premier Wynne earlier this year).

“We will repeal the problematic elements of Bill C-51, and introduce new legislation that better balances our collective security with our rights and freedoms.”

The infamous security bill that had some Liberals tearing up their membership cards proved not to be the electoral vulnerability many expected. Trudeau’s ‘middle ground’ stance on C-51 was lent credibility by an official platform document that specified that a Liberal government would:

  • introduce a guarantee that all Canadian Security Intelligence Service warrants respect the Charter of Rights and Freedoms;
  • establish an all-party national security oversight committee;
  • ensure that Canadians are not limited from lawful protests and advocacy; and
  • require that the government review all appeals by Canadians on the no-fly list.

Some of these points deserve applause, such as the establishment of an oversight committee (a common requirement in comparable legislation across the globe). Others, like the no-fly list review, are weak. The Liberal proposal preserves the use of ‘closed sessions’ in which the accused and their lawyer have no access to some of the evidence on which the judges might base their decision. In 2007, the Supreme Court held that a similar procedure for security certificates was unconstitutional under section 7 of the Charter.

What’s Left Out?

There’s at least one issue out there arguably more important than bilingual requirements or SCC appointment reforms—a problem that has plagued Liberal and Conservative governments alike, but which failed to make an appearance in any party platform. I refer here to patronage appointments to the several hundred non-SCC benches that the federal government controls. A 2006 study by CanWest News Service revealed that at least 60% of lawyers appointed since 2000 to the provincial benches of Quebec, Ontario, Alberta, and Saskatchewan and the federal court by the Chrétien and Martin governments had donated exclusively to the Liberal Party in the three years before their appointments. Let’s hope Mr. Trudeau establishes a non-partisan process to ensure that judges are selected purely for merit.

Justin Trudeau has promised some of the most progressive and dramatic changes in justice policy in years. Some of it simply undoes the damage of the Harper years, but some of it is entirely novel. While the election was largely fought on the economy, let us hope that Mr. Trudeau does not forget his numerous justice policy commitments.

All quotes from the official Liberal Party Platform.

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