Supreme Court decision deserves response

Hey there, time traveller!
This article was published 10/11/2023 (1040 days ago), so information in it may no longer be current.

SECTION 33 of the Canadian Charter of Rights and Freedoms gives governments the right to override certain rights contained in the Charter on a temporary basis. Section 33 — the notwithstanding clause — was included in the 1982 Constitution because of a compromise with several premiers who felt the powers of elected governments would be hamstrung by the new Charter.

The notwithstanding clause was seen as a crucial tool for governments to use when unelected judges overstepped their authority.

Since 1982, Section 33 has been used rarely, allowing judges wide leeway to engage in what many view as judicial activism. But, in the last couple of years, some premiers have rediscovered notwithstanding.

Earlier this year, for example, Saskatchewan premier Scott Moe attached Section 33 to a new policy recognizing parental rights, which stated that all students under the age of 16 would require parental consent to use the name and pronouns of their choice at school. After a judge granted an injunction halting the government’s new policy, Moe recalled the legislature and used Section 33 to both override the injunction and shield the bill from legal challenges.

In 2021, Ontario’s government used Section 33 to reintroduce and protect legislation that curtailed the power of third-party actors like unions and pro-business lobby groups to advertise in the months leading up to election campaigns.

A judge had ruled that it was unconstitutional for the government to double the restricted pre-election spending period for third-party advertisements to 12 months. Premier Doug Ford argued it was well within the government’s authority to protect elections from outside influence, and so invoked Section 33.

The more frequent use of the notwithstanding clause by provincial governments is seen by some to represent an unravelling of Canadians’ Charter rights, with some proposing ways to limit its use or do away with it altogether. In fact, most of the time when the courts strike down legislation in this country, governments simply make the changes required by judges.

Even if one is alarmed by premiers’ rediscovery of Section 33, a recent Supreme Court decision reminds us why democratically elected governments sometimes need a tool to rebuke unelected judges.

Late afternoon last Friday, the Supreme Court released its opinion on two cases involving child luring and mandatory minimum sentences. The cases involved men who had been convicted of child luring, defined simply as communicating with a minor with the purpose of committing a variety of crimes including sexual exploitation, incest, or child pornography. Both argued that the mandatory minimum sentences for their crime violated Section 12 of the Charter, which protects Canadians against cruel and unusual punishment.

In most cases, judges have wide discretion to determine sentences for crimes. But mandatory minimum sentences dictate a minimum jail time, depriving judges of the ability to hand out light conditional sentences for serious crimes.

Stephen Harper’s government introduced mandatory minimum sentences for a slew of offenses. Some crimes richly deserved mandatory minimum sentences; some, perhaps not.

Slowly but surely, the Trudeau government has been doing away with mandatory minimums, while the courts have been finding ways to strike down those that remain as unconstitutional.

The Harper government slapped a paltry one-year mandatory minimum prison sentence on child luring when pursued as an indictable offence. This is what was at issue in the Supreme Court’s recent ruling. The court, with a near-unanimous ruling, agreed with the men convicted of child luring that a one-year mandatory minimum constituted cruel and unusual punishment, and struck down the sentence on that basis.

Here’s an experiment: stop 10 people on the street and ask whether they think a minimum one-year prison sentence for luring a child for the purposes of committing a sexual offense against them is “cruel and unusual” punishment. In addition to some horrified looks, I’d guess that not a single person would agree.

And if a politician ran for public office on a platform of doing away with mandatory minimum sentences for those accused of child luring, they would rightfully be shellacked at the polls.

This is the problem with giving power over such matters to nine unelected, unaccountable judges sitting in Ottawa. In this case, the justices were at pains to argue that their ruling did not mean they viewed child luring as “a less serious offence.” But how should regular Canadians take it when a requirement to impose even a miniscule sentence for such a devastating crime is struck down by the court?

Most importantly, the case illustrates precisely why we need the notwithstanding clause. You may disagree with the reasons why premiers have used Section 33 in recent years. But this Supreme Court decision reminds us why it is crucial for elected officials to have the final say when judges hand down decisions that are far outside the mainstream of public opinion in Canada.

Royce Koop is a professor of political studies at the University of Manitoba and academic director of the Centre for Social Science Research and Policy.