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Judges must make choices

It was inevitable. Things are heating up between the courts and the federal government.

On the burner are Prime Minister Stephen Harper’s get-tough crime bills, imposing mandatory minimum sentences. And as legal authorities predicted, the bills most likely are headed to the Supreme Court of Canada for a challenge.

Courts in British Columbia and Ontario have ruled that in some cases the mandatory minimum is unconstitutional under the Charter of Rights and Freedoms.

It’s being argued that the sentences are excessive, far exceeding sentencing guidelines established in the past by the Supreme Court.

And a mandatory punishment does not always fit the crime; each case before the courts must be considered on an individual basis.

Harper’s government could have saved the courts’ time and taxpayers’ money had he left sentencing in the hands of those who understand the complexities of the justice system.

There’s also the argument that mandatory minimum sentences constitute government interference in the due process of law and that Canada’s courts must remain free and impartial.

Recently in B.C., a provincial court judge ruled that the mandatory three-year minimum sentence set by the federal government in its 2008 Bill C-2 for a firearms offence was unconstitutional and excessive.

It’s safe to assume the eventual outcome of that case, likely determined by the Supreme Court of Canada, can be applied to the more recent Bill C-10.

In Ontario, judges have challenged the mandatory minimum sentences in at least two cases involving firearms offences.

In another case, an Ontario Superior Court Judge struck down a section of the Criminal Code dealing with dangerous offenders, citing a breach of the Charter.

And the United Nations entered the discussion in October, condemning Harper’s omnibus crime bill C-10 as “excessively punitive” for youth. The UN said it’s a step backwards for Canada’s child rights record.

The bill includes stiffer penalties for youth and makes it easier to try them as adults, which the UN committee on child’s rights says “no longer conforms to the child rights convention or other international standards.”

In a September interview with CBC, Federal New Democrat MP and justice critic Francoise Boivin warned of growing tensions between the federal government and the courts. Boivin said the Conservatives are “pitting the judicial against the legislature” and should instead reflect on the messages the courts are sending them.

Retired Ontario Superior Court Judge James Chadwick told the CBC that sentencing is one of, if not the hardest, aspects of being a judge.

When asked if mandatory minimum sentences would make a judge’s job easier, he said, “Well, I guess it makes it easier for throwing the key away.”

The federal government steadfastly defends its position.

Kerry-Lynne Findlay, the parliamentary secretary to the minister of Justice, said Bill C-10 was designed in part to “send a strong message that we are standing up for victims of crime and the most vulnerable in society and to make criminals more accountable for their actions.”

Federal Justice Minister Rob Nicholson has said previously that “It’s our job to give guidance to the courts. We have mandatory sentences in this country for quite some time, and the ones we have are reasonable and provide that guidance.”

But that mind set undermines the entire justice system. It’s up to the Supreme Court of Canada to set sentencing guidelines, based on years of experience.

If an impartial body is not the ultimate arbiter of justice, then every new government can manipulate the system on a whim. Arm’s-length justice is a cornerstone of our democracy.

Rick Zemanek is a former Advocate editor.



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