Monday, April 16, 2007

Justice, judge thyself

In a speech last week, Supreme Court Chief Justice Beverley McLachlin attributed to "ignorance" the notion that "the Charter has put law, order and public safety at risk by making it harder to convict felons and softening punishment." She is mostly right, of course — the Charter is used only rarely for get-out-of-jail-free cards, and usually only in high-profile cases defended by very expensive lawyers. It is judges and politicians that are responsible for the lax judicial treatment and punishment of dangerous criminals, and while it is true that the Charter is indulged occasionally by law-makers and law-bringers for an excuse of their lenient sympathies, it is from mistaken or tendentious beliefs.

McLachlin chose to counter ignorance, however, with an oddly weak and easily refutable claim:

"In fact, I don't believe the statistics bear out the claim that the Charter puts law, order and safety at risk."
In fact, this is a fatuous remark since there are no statistics correlating crime and the Charter, nor can there be any correlation except strictly anecdotal or rhetorical in nature. Coming from a Chief Justice, however, the comments could be taken, as by the Montreal Gazette (link via Paul Tuns), as an "incendiary assertion" given that "one national political party persistently calls itself 'the party of the Charter' and another is trying to crack down on crime." But this is only a matter of interpretation…

Nevertheless, it is aside from this that McLachlin "sailed close to the wind" in her speech, as the Gazette puts it.
"The most important thing I think is to educate the children and young people. The basics of the Canadian Constitution — including the Charter — should be mandatory learning in our schools and high schools."

… She warned that any change to the traditional relationship between judges and legislators "has the potential to harm both the legislative and the judicial branches of governance, and ultimately perhaps to undermine the peoples' confidence in democracy."
Educational policy is, however, the jurisdictional preserve of the legislative branch — in just one speech, McLachlin makes a complete hash of her credibility and assertions by trespassing on the very same "traditional relationship" that she believes to be so important to "the people's confidence in democracy." And it's not the first time that McLachlin has parted the tissue binds of the judicial branch's role in the relationship. As the Gazette suggests:
Instead of teaching just the Charter, perhaps schools should be invited — not ordered — to emphasize the difference between elected politicians and appointed judges as arbiters of what's good for democracy.
Update: Little Tobacco demonstrates in the comments why it's always a good thing to have an in-house lawyer, and why it's never good policy to try to give the Supreme Court Chief Justice even just a half-break.


Little Tobacco said...

I can't agree with a few things in your post. First, The Cahrter is used daily in the Provincial Courts around the country. The prosecutors and the defence know the Charter regardless of the profile of the case or the cost of the lawyer. The reality is that in the face of a clear Charter breach, the charges are usually withdrawn before the matter gets to trial. It is the high profile cases that get the media coverage. You would be surprised by how many charter applications are brought on a daily basis in the court systems. I have no statistics, just experience, and the charter is invoked with respect to statements by accuseds on a regular basis. They are not high profile cases so they are not reported. In 2007 I have two clients' charges withdrawn due to improper searches by the police prior to the matter getting to trial. There was no reasonable prospect of a conviction.

The high profile cases are the ones you hear about and generally, the failure of a Charter arguement does not make the story.

As for the nonquoted statistics, there were statistics released recently that indicate, much to my disappointment, that the Supreme Court of Canada, when faced with legislation that violates the charter (ex. election spending legislation) the SCC has upheld the legislation in a large majority of he cases.

Criminals will always be with us. Dangerous criminals generally are dealt with harshly. The problem again comes with profile. It is like blaming violence on video games. Some guy plays a shooter game and becomes a shooter then the game was the cause. Never mind that the thousands of other players did not pick up a gun. There are people convicted of crimes every day that will not commit another crime. The law is general and the problem comes when we focus on the exceptions.

Little Tobacco said...

With that said, I think the SCC is a tad weak right now when it comes to rights and freedoms. The Chief is actually one of the strong ones on individual freedoms as can be seen by her numerous dissents in recent years. She was in dissent in the Harper case re election spending and in the Bryan case re publishing election results.

MapMaster said...

Interesting comments (not on the subject of the Charter) from former Chief Justice Antonio Lamer via Bob Tarantino:

in an interview in his Ottawa apartment, [former Chief Justice of Canada Antonio] Lamer said he thinks some judges these days are too lenient and some prisoners, such as drug traffickers, are up for parole too early. "I will candidly say I have been looking at some sentences and I have found they are not what they should be. They should be more severe," said Mr. Lamer. "These words coming from me might surprise some people, but I mean them." To that end, Mr. Lamer said, he agrees with some of the Harper government's tough-on-crime initiatives.

Tarantino goes on to note that Lamer had a particularly lenient bent toward criminals himself when on the bench.

Little Tobacco said...

it's easy to be a tough guy from the stands