I am sure many readers will have heard the story of the farmer who had to hit a stubborn mule in the head with a baseball bat in order to get its attention. Canadians have now been given a comparable wake-up call as to the consequences of the Charter of Rights and Freedoms by a judge in Ontario.
The Canadian Parliament, which consists of the duly elected representatives of the people, enacted a section of the Criminal Code commonly referred to as the "three strikes you're out" law. This law was intended to deal with incorrigible violent offenders.
In summary, the law says if a person convicted of an offence involving sexual violence is shown by the prosecution to have been previously convicted of two similar offences and sentenced to at least two years of imprisonment on each occasion, the court could be asked to declare the person a dangerous offender, who would be incarcerated for an indefinite period, not to be released until an appropriate authority was convinced they were not likely to reoffend.
There are legitimate differences of opinion as to the desirability and justice of such laws, which are not uncommon in North America.
Dangerous offender laws have been a feature of Canadian criminal law for many years. The three strikes law was passed by the Conservative government to deal particularly with violent sexual crimes.
Advocates and critics of the law can present persuasive arguments for their opinions. Critics say indeterminate sentences can amount to life imprisonment and administrative procedures that can theoretically permit a prisoner to be released are an ineffective remedy. Proponents of the law argue where a convicted criminal has been proven to be incorrigible and there is a virtual certainty they will offend again if set free, there is a need to protect society from a likely repetition of the violent conduct.
It is not my purpose to attempt to resolve this dilemma. My own particular opinion is harsher sentences do not act as a deterrent to the commission of crimes. If we are to reduce crimes, we have to reduce the fundamental causes of crime. It cannot be contradicted that the criminal element is in greatest percentage a product of the impoverished sector of society. If we could reduce poverty, we would reduce crime.
But the critical question is whether the people are entitled, through their elected representatives, to enact such laws. And if such laws are enacted by Parliament, is it right that non-elected judges can declare such laws to be null and void?
Many and probably most Canadians are shocked when they are told such laws passed by Parliament can be vitiated by the courts. The fact that this could be done was not thoroughly canvassed when the charter was being debated. Anyone who opposed the charter was accused of being contrary to the people having basic rights.
Editorials criticizing the judge for overturning a parliamentary law are appearing in the same newspapers that have traditionally idealized the Charter of Rights and Freedoms as being one of the sacred cows of Canada. When it comes down to actual practice, supporters of the charter are beginning, albeit a little too late, to have second thoughts.
One wonders why it was so easy to convince Canadians that important policy questions affecting the rights of citizens are better left in the hands of non-elected, unaccountable judges than entrusted to the elected representatives of the people.
The reason appears to lie in public perception. Politicians are generally held to be in disrepute. Often politicians themselves criticize one another for acting politically. Judges, on the other hand, are clothed with robes of respect and for the most part, their integrity is considered to be irreproachable.
Both the culpability of politicians and the untouchability of judges are misplaced. When you have a constitutional charter of rights, as in the U.S., one of the most politicized features of decision-making is the selection of judges, as it is now in Canada. It cannot be otherwise.
If a political party campaigned on the right to life of an unborn child and was elected, it would undoubtedly use its power to appoint judges by selecting those whom it was confident would support this view. If on the other hand, a party had in its platform the right of a women to terminate a pregnancy, it would be careful to select judges it was confident would support this position. To do otherwise would be a betrayal of those who supported the party in the election. On policy questions, judges are no more or less impartial than elected party stalwarts.
Charter supporters argue rights cannot be protected by majority rule, since a majority can trample on the rights of a minority. This is certainly true.
But it is equally true that countries with constitutional safeguards, such as the U.S.S.R., have not been more effective in preserving rights than countries that have parliamentary supremacy, for example, Great Britain.
The truth is that in order to preserve individual rights, you have to have a population that is conditioned to protect them. Eternal vigilance is the price of liberty whether under a parliamentary system or a system where judges have the last say.
Sid Green is a Winnipeg lawyer and a former NDP cabinet minister.