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Jeffrey Simpson (Brigitte Bouvier For The Globe and Mail)

Jeffrey Simpson

(Brigitte Bouvier For The Globe and Mail)

JEFFREY SIMPSON

Enforce them, but these laws are an ass Add to ...

It was inevitable that conflicts would arise between the Harper government and some of Canada’s courts. Now, it’s happening.

These conflicts will continue to occur because the laws being passed are the kind some judges take exception to, and that have been denounced by criminologists and other experts across the country because they challenge what judges hold dear – their discretion to apply the law as they see fit.

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Eventually, the Supreme Court will revisit some of these laws to which lower court judges are taking exception, such as mandatory minimum sentencing laws, American versions of which have proven so useless that states are abandoning them, and mandatory financial penalties for convicted criminals.

The biggest criminal justice showdowns of them all will occur at the Supreme Court, which is among the reasons Prime Minister Stephen Harper’s government is appointing Justice Marc Nadon of the Federal Court of Appeal there, even though Justice Nadon has no serious credentials to be on the Supreme Court, at least not compared with other potential nominees from Quebec.

Peter MacKay, the Justice Minister, hasn’t even bothered to outline what his nominee’s credentials might be. Instead, he has repeated the simple mantra that Justice Nadon is qualified, without pointing to any distinguished judgments he has written, academic contributions he has made or important cases where he was involved as a practising lawyer.

If such qualifications exist, a federal justice minister would presumably assemble a file and make them public. But either such evidence does not exist (which is highly likely) or Mr. MacKay is acting like so many of Mr. Harper’s ministers and simply stating justifications as fact without believing that any supporting evidence is needed.

Mr. Harper’s government wants Justice Nadon on the highest court because it thinks he will be much more compliant with the government’s positions, including in criminal matters. (Although judges do sometimes surprise the governments that nominate them in this regard.)

The Nadon appointment is part of a piece. Across the country, quietly, Mr. Harper’s government has been appointing judges it believes will be more sympathetic to Crown positions. In some provinces, the tilt has been toward former Crown prosecutors whom the government believes will be less sympathetic to the procedural and substantive precedents favouring the rights of the accused.

This pattern reflects a deeply held conviction in the former Reform Party, whose influence remains so profound on today’s Conservative government – a conviction that the judiciary, writ large, has widened the rights of the accused, paid insufficient attention to the sufferings of victims, bent the law into its biases, used the Charter of Rights and Freedoms in an excessively expansive fashion and generally contributed to making Canada a less secure nation.

Of course, the Harper government constantly feeds this perception with its “tough on crime” rhetoric, which is almost utterly at variance with the facts about crime.

As Statistics Canada reported last March, overall spending on the justice system rose 23 per cent between 2002 and 2012, whereas Canada’s crime rate actually fell by exactly the same proportion during those years. After Mr. Harper’s Conservatives came into office, the government drove up yearly criminal justice spending from $400 per capita to $480 between 2006 and 2012 – an increase of 20 per cent – despite the decrease of serious crime rates, including homicides.

Currently at issue are rulings by lower court judges who refuse to levy the mandatory financial penalties to convicted criminals, or impose only token levies. They have, it is literally true, wrongly taken the law into their own hands by not enforcing what Parliament (read the Conservative majority) in its lack of wisdom has passed.

As such, Mr. MacKay is right: Judges must apply the law in some fashion – even if the law is an ass, as is the case here, because this law does very little for victims, except perhaps to give them some vicarious sense of retributive satisfaction, while inflicting senseless penalties on people who often have little or no money.

The law is more about rhetoric than reality, but that rhetoric has become a self-evident truth for those who spout it and, more dangerous still, echoes among some in the general population and media who believe these sorts of laws make society safer – against all the professional evidence that they do not.

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