In recent months, Canadian judges, including several Manitoba judges, have challenged laws enacted by the Conservative government as part of its tough-on-crime agenda. Their decisions were sometimes just, and sometimes compassionate.
But their judicial conduct blurs the lines of the constitutional division of powers. And risks leaving Canadians confused, and perhaps cynical, if laws passed by our elected representatives seem to mean so little to the courts.
Two Manitoba judges recently found the mandatory minimum sentences on gun crimes offend the Charter of Rights and Freedoms, and therefore imposed lighter sentences than prescribed by law.
In September, Court of Queen's Bench Justice Colleen Suche refused to give a mentally disabled man the compulsory minimum three-year prison term for possession of a prohibited firearm. Instead, she sentenced him to six months of time already served behind bars and three years of supervised probation. In October, another Queen's Bench judge, John Menzies, refused to impose a four-year mandatory minimum sentence on a man for reckless use of a firearm, and sentenced him to one year in jail and two years of supervised probation.
Earlier this month, provincial court Judge Mary Kate Harvie dealt a blow to a new law aimed at toughening criminal sentences. The Criminal Code was amended to prevent an offender who is denied bail because of a criminal record from asking for extra credit for time spent in custody while awaiting trial. But Harvie ruled a serial break-and-enter artist, denied bail due to his criminal history, could seek enhanced credit for the 18 months he spent in jail.
Judicial defiance of the Conservative government's crime legislation isn't confined to Manitoba. In Ontario, it's become an open clash between some members of the judiciary and Parliament.
The Increasing Offenders' Accountability for Victims Act compels judges to impose a mandatory "victim fine surcharge" on all convicted criminals -- $100 per summary conviction offence and $200 per indictable offence, or 30 per cent of any fine imposed. But several Ontario judges have either ignored the law or evaded its intent by imposing nominal $1 fines, so that the mandatory surcharge is a mere 30 cents.
Ontario Court of Justice Colin Westman has even given media interviews, publicly decrying enforcing the surcharge and stating "I am not a tax collector."
Legislating criminal law is Parliament's function. Applying or interpreting that law is the judiciary's domain. Judges aren't supposed to pick and choose which laws they'll enforce.
When they routinely refuse to apply newly legislated amendments to our criminal law, the result is harmful to the criminal justice system. It erodes the rule of law and creates an impression of arbitrary behaviour. Ultimately, it undermines public confidence in the administration of justice.
Much of the debate between the judiciary and Conservative government has spiralled out of control.
Judicial opposition to some of the Ottawa's tough-on-crime legislation hasn't been well served by the tone and tenor of public comments like those of Westman. Provocative statements only polarize positions -- pitting the bench four-square against not only the Conservative government but against Parliament and victims' rights groups.
Federal Justice Minister Peter MacKay has accused several Ottawa judges of "making a mockery" of the fine-surcharge law and called their evasion of the surcharge "insulting" and "disrespectful" to victims of crime.
Ultimately, the Supreme Court of Canada may set both the courts and Parliament straight. In the meantime, both sides should tone down the rhetoric, and step back from the escalating conflict. Only by doing so can either fairly claim to be acting in the best interests of the criminal justice system.