Democracy, not unlike a father of Biblical fame, sometimes chooses favourites from among its institutional offspring. Prior to 1982, Parliament had favoured-son status in Canada. With the introduction of the Charter of Rights and Freedoms, the courts were promoted to become the preferred arbiter of democratic siblings' disputes. This was boldly announced at the supper table. Section 52 reads: "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." There was a family squabble, but it's long been forgotten. Everyone acquiesced, notwithstanding the occasional griping, and the Court has since worn its special robes — sometimes subtly and sometimes crassly — but there has been little confusion among democratic siblings about who has top-dog status.
This isn't all bad. Someone needs to settle disputes, and it's not as if courts are the worst of institutions to be given this task. It's no different than Jacob's famous gift of a multicoloured coat to his preferred son Joseph, which shouldn't be derided simply because an ignoble story follows. Coats are a most useful gift in a Middle East climate in which temperature extremes are endured. They are required, not optional. And if you're going to wear a coat, wear a nice one rather than an ugly one. If your coat is a special gift from Dad, so much the better. We're told that Jacob personally made the coat for Joseph. There was great meaning embodied in that cloth, including all of the laudable sentiments that a proud father would have regarding a son with great potential. Joseph rightly wore it with pride.
As courts go, Canada's deserve credit for having done much good. Compared to most jurisdictions, the rule of law and protection of freedom fares pretty well in Canada. Fair trials are the norm and a reasonable regard for the law is popularly upheld. It's always tempting to count the decisions where we think the Court has got it wrong, and most of us can identify a few instances where it would seem they did. Critics of the Court level judicial activism charges (it should be noted that most courts in the Western world face this charge from their democratic siblings), and while there are plausible arguments put forward, the case is nuanced. To singly blame the courts for responding to rapid social change is to be deaf to the multi-dimensional nature of culture change. It also lets off the hook some of the other democratic siblings that have conveniently shirked tough questions, leaving it for the courts to sort through some of the more contentious matters. I'm no populist; but if we aspire to a democratic system — "government by the people" — social change will be reflected in the law. The Court has both shaped and reflected a majoritarian consensus regarding how concepts such as justice, rights and equality ought to be balanced in modern Canadian society.
But like Joseph, whose life showed him to be an indisputably wise man who contributed significantly to the well-being of many nations, Canada's Supreme Court occasionally wears its colourful coat with youthful indiscretion. The April decision on the R. v. Nur case, more commonly discussed as the minimum sentencing decision, is the most recent (and stark) illustration of this.
To quickly provide context: the Conservative government has made deterrence of crime a major theme, and arguably received its mandate to govern with this as one of its primary objectives. The government has passed several pieces of legislation designed to stiffen penalties for those convicted of crimes, emphasizing the deterrent effect such sentences are supposed to have. In 2008, it amended a mandatory minimum sentencing law in which anyone convicted of the unlicensed possession of a prohibited or restricted firearm must receive a sentence of at least three years. Two individuals convicted under this law (both pled guilty) appealed their sentences in cases that worked their way to the Supreme Court. Their argument was that the minimum sentencing provision violates section 12 of the Charter, which promises that "everyone has the right not to be subjected to any cruel and unusual treatment or punishment." The court, in a 6-3 decision, ended up ruling that the law violated this constitutional provision. Interestingly, the justices noted that their decision applied to "reasonably hypothetical" situations and not to the cases before it. In fact, both of the original sentences were upheld.
It was while reading this decision that the metaphor of Joseph and his coat came to mind. A young Joseph had dreams in which his brothers and sisters as well as his mother and father ended up bowing down before him. Even his father, who doted over him as the favourite son, was offended and rebuked him. His brothers became jealous. Joseph, it seemed, was deaf to his family's politics and repeatedly flaunted his favoured-son status.
Those who recall the rest of the story know that although all things ultimately work out well, the short term doesn't go so well. Joseph travels on assignment to check on his brothers, shepherding their sheep near a neighbouring city. He arrives wearing his multi-coloured coat — by now a symbol of his favoured-son status — and his jealous brothers take advantage of the opportunity and sell him into slavery. They drench his coat in animal blood so that it can be returned to their father as proof of their story that Joseph was killed by a wild animal. The coat, an emblem of Joseph's special place in Jacob's heart and of Jacob's hopes and aspirations, ends up an ugly symbol of how things can go so horribly wrong in a family.
Canadian courts have a responsibility to ensure that Parliament passes laws that respect the rights of individual Canadians. That was the deal we agreed to in 1982. Prior to that, the courts role under the British North America Act was different, sorting through jurisdictional disputes between different levels of government. Once questions of jurisdiction had been sorted, the legislature of that jurisdiction was supreme.
For the most part, that worked well; but we should be careful not to let nostalgia romanticize that arrangement. Diefenbaker's Bill of Rights was passed in the context of a growing general awareness that all was not well when it came to respecting individual rights. Whether it came to respecting members of the aboriginal community, Canadians of Japanese origin who were placed in internment camps, or individual instances of legal or political overreach that substantially ruined the lives of individuals who were on the wrong side of power, it can't be denied that older siblings of the Canadian democratic institutional family were imperfect exemplars of our democratic ideals. Neither the Bill of Rights nor the Charter of Rights can be divorced from this narrative.
Fast forward to 2015. In the immediate case, the Supreme Court is exercising its post-1982 role, which includes evaluating complaints against Parliament's legislation regarding the extent to which it respects individual Canadians' constitutional rights. The majority of the Court struck down Parliament's law, relying on an argument of a "reasonable hypothetical," since neither the facts of the case nor a single case since mandatory minimums were introduced in 1995 fit their justification for striking down the law. However, the court could imagine a case in which a "licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored." This, in the opinion of the majority, is justification to impose their preferred theories of sentencing and deterrence effects.
The minority decision of the court, in the strongest dissenting language that I can recall reading, makes the counter-argument well.
"The hypothetical licensing-type cases relied upon by the majority are not grounded in experience or common sense. First, experience shows there is not a single licensing-type case…where an offender has been prosecuted by indictment, thus attracting a mandatory minimum…. Second, an application of the reasonable hypothetical approach…does not accord with common sense. The Crown election has been purposely integrated into the legislative scheme and is a clear expression of Parliament's intent to confer on prosecutors the ability to divert the least serious licensing-type cases into summary proceedings. It is a mistake to shunt this factor aside when crafting reasonable hypotheticals."
Allow me to translate into non-lawyerly free verse. "You dummies — read the law. Your reasonable hypotheticals haven't happened nor are they about to. Parliament considered and addressed your fanciful imaginations. Get off your high horse. The public gave this government a mandate to deal with a perceived crime problem, and just because you disagree, you are going to make a mockery of our responsibility as the settlers of family disputes? Don't be so stupid!"
In fact, the minority's articulation of the final point, albeit in lawyerese, merits quoting.
"Parliament's choice to raise the mandatory minimums…reflects valid and pressing objectives, and it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture.… The hypothetical scenario advanced by the majority stretches the bounds of credulity."
If this were a one-off, one might overlook this decision. (Although when you are the institution that has been granted the power to have the final say in sorting out domestic disputes in the democratic family, what you say can never really be overlooked.) However, not only the Court but the prevailing media narrative surrounding the Court's decision has evolved into a story of the courts competing with the government for primacy. Almost all of the coverage includes some commentary regarding how this is the sixth (or seventh or eighth — it all depends who is doing the counting) recent decision in which the Prime Minister's will has been stifled by the Court. Throw in a rare prime minister — a Chief Justice exchange that was made public last summer and the Court not seating one of his appointments — and the Court versus Parliament narrative has become embedded.
So how is this playing around the democratic dinner table? The government remains convinced its "tough on crime" narrative is one that has populist appeal, and there is good reason to believe it does. I would expect the Conservatives to argue that "you elected us with a 'tough on crime' agenda. We've kept our promise, but the Court has rebuffed us." It doesn't take an extensive imagination to predict the rhetorical flourish.
A Truth in Sentencing Act that replaced the "pre-sentence time served counts double" rule with an "X years means X years" rule? Overruled!
A bill that toughened parole conditions for white-collar criminals?
Prostitution laws that have been on the books since 1985?
A violation of individual rights. Parliament has a year to write a new law.
And it's not just Parliament's decisions that are being overturned. The Court is also revisiting its own decisions. In 1993, it ruled in the case of Sue Rodriguez that the Charter did not include a right to assisted suicide and that if the law on such a contentious social question should be changed, it was Parliament's job to change it. Parliament did its job, on six occasions considering the question. Each time, it declined to change a law that the Supreme Court itself had explicitly ruled to be in compliance with the Charter. No longer! Early in 2015, the Court took occasion to disagree with itself, interpreting social science evidence as supporting a new constitutional right that the choice to take one's life is a greater good than life itself. If you read the Court's decision, it is obvious that the right is right there in section 15 for all to utilize. How did we miss it?
Okay, rhetoric regarding a decision that is profoundly disturbing is getting the better of me. In any family, natural as well as democratic, there are disagreements and elbowing contests to determine who gets to decide what and how the institutional pecking order might work. Don't make the mistake of making any one court decision absolute or reducing an entire narrative to a single metaphor. The nuance of dynamic relationships that exist in the sorting out of the law and its interpretation in a democracy will always have these sorts of intense democratic conversations.
Deep breath. You are right.
Understand, it isn't my aim in using a Biblical metaphor to suggest any predictive lessons from that ancient history lesson. But might I humbly suggest that our splendidly robed judges reflect on a lesson that might be gleaned from the story of the multicoloured robe. (I say this sympathetic to the important and legitimate role of the courts. Joseph is a good guy in the Biblical narrative, even though his unpleasant challenges were at least in part self-inflicted.)
The unchallenged supremacy of the courts since the introduction of the Charter in 1982 does have an out in section 33, the "notwithstanding clause." To date (with the exception of Quebec and the application to language laws), the utilization of that clause has been politically toxic and untenable, with the cherished Charter of Rights ranking among the most valued of Canadian priorities. (A recent Cardus-commissioned Nanos poll ranked it second among Canadian priorities, just behind our health-care system.) But am I alone in thinking that the recent pattern of decisions, culminating in the R. v. Nur decision, rankles the democratic family structure? Is a narrative being created that will culminate in some elbowing regarding who decides what in the family pecking order?
I am reminded of Joseph sharing his dreams with his brothers, which proved extremely imprudent and ultimately provoked them to action. The text records it sharply. "When his brothers saw that their father loved him more than any of them, they hated him and could not speak a kind word to him." (Gen 37:4). "So when Joseph came to his brothers, they stripped him of his robe — the robe of many colours which he wore." (Gen 37:23).
I'm not in the prediction business, but I would not be surprised if this pattern of the Court thwarting Parliament's tough-on-crime agenda led to a use of the notwithstanding clause. And, if the tussle between our democratic institutions continues, this may be more than a one-time occurrence. The consequence of this for the application of law in the Canadian polity.
I observe this as someone who isn't a huge fan of the Conservative tough-on-crime agenda (a topic for another day). Forget the particulars of the case. What is at stake is a legitimately, democratically elected Parliament acting on its mandate (too rare of an occurrence these days) and being thwarted by the courts with argumentation that is, by the admission of the courts own minority, dubious and stretching credulity. Such sentiments don't just impact the specific law in question. They bring into question the overall credibility of the rule of law.
But it is an observation that in the institutional arrangements and pecking order for the Canadian democratic family, to ignore public opinion and to preen the judicial robes at the family table just because you can (and you may even be right — no one can know that just yet since, by the court's own rationale, the only cases that this might apply to are "reasonable hypotheticals" that 20 years of history have not yet produced.). Joseph was proven right, too, but his imprudent use of his multicoloured coat certainly contributed to his troubles along the way. I wonder if we will soon be looking back at these recent words of our royally robed judiciary as significant factors in a similar narrative.