Don’t leave your day job Peter MacKay #cdnpoli

Well, hello Mr. Peter MacKay. It’s been a while since you decided to show up in the media. I read your special post in the National Post, “Respect the rule of law.” Funny, the rule of law, means that no one is above the law—yes, even politicians or prime ministers. So, I think you use that term but you don’t know what it means.

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Yes, Canada’s Supreme Court struck down criminal laws enacted by a parliament, though arguably, neither democratically elected nor accountable. While your party may have enacted laws and engaged in law reform, these law reforms were not meant to “re-balance” our justice system. And if you want to talk about the “groundbreaking [sic] new Victims Bill of Rights” or the “youth and child advocacy centres”, the Supreme Court touched neither the Victim Bill of Rights nor these centres.

Over the last decade, the only institution that seemed at odds with the Supreme Court was (oddly) your party, the Conservative Party of Canada. Also, nobody enforces the rule of law; it exists independently of all laws—everyone benefits when we actually use this concept correctly (#sorrynotsorry). And, ultimately, the only demand for greater accountability seemed to remedy itself once your party failed to capture another majority at the last election. I would say that is demonstration of the public demand for greater accountability in its clearest form.

While you quote part of the dissent in your special post, you quote the dissent out of context. The dissenting judges cite Nasogaluak when talking about mandatory minimums as a “forceful expression of governmental policy in the area of criminal law” (in R v Lloyd at para 60). That is the particular citation you quote.

In that citation in R v Lloyd, the dissenting Supreme Court Justices refer to a specific and unique framework and when applied, includes some very serious considerations. For instance, as held in R v Nasogaluak, courts must consider any instance of police violence in reducing a sentence for a mandatory minimum (in Nasogaluak at para 53). In that same decision, Canada’s highest court also held that a sentence can be reduced because of state misconduct even when there is no Charter breach (ibid).

And when you quote, “Parliament is owed substantial defence in crafting mandatory minimum sentences”, you must have seen that the dissent was referring to a decision which prohibited a man from driving for three months—in an effort to protect the vulnerable people who drive our dangerous highways and roads every single day (See R v Goltz, [1991] 3 SCR 485). That same court in the Goltz decision held when a bad driver scores more points, it’s not good and not having bad drivers on the road is good. I mean, don’t you want to protect the poor innocent children who are at-risk of bad drivers?

Also, you decide to highlight that only in “rare and unique circumstances” a mandatory minimum will violate the Charter. Yes, it is true that the dissenting judges state something similar. However, they are referring to a decision which states, “It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter” (Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, at p. 1417). This test, however, was for reviewing sentences in general. Also, the Steele decision involved a dangerous offender designation. Something quite different than the factual circumstances in R v Lloyd.

Strangely, however, you also quote Supreme Court Justice Moldaver, which looks like a quote from a decision but it’s not. Based on the absence of a 2011 archives for Judicial appointments, I am assuming from media articles (like this one here) that this quote comes from such committees.

But, what is this “lost in the activist celebration in some circles are the basic facts”?! When you don’t refer to any “basic” facts?! In fact, you draw an illogical conclusion. You state, “Recidivism rates in some areas of our justice system are on the rise and public confidence in our system is waning and turning victims in particular away from reporting.” I would suggest that recidivism is on the rise because the lack of social supports in communities to help rehabilitate prisoners—an objective of the Criminal Code. And the reason victims don’t report is largely because victims don’t trust the current system to provide justice. Despite your insistence on focusing on the facts, you then make reference to the Truth in Sentencing reforms in 2009. These reforms could definitely be linked to those increasing recidivism rates you refer to in your previous paragraph.

Still, while calling for protection of the vulnerable is a laudable goal, to say that the court is encroaching over Parliament’s power to enact legislation is a misuse of the rule of law. A democratically elected and accountable Parliament should not enact laws that violate our Charter rights and civil liberties and by appealing to emotion (aka protecting the vulnerable), it is nothing more than a weak argument. Then again, with your track record as former Justice Minister, I guess this is what we should expect.

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