Two courtrooms, two legal questions, two constitutional controversies. One, a question of mandatory minimums. The other, of mandatory maximums.
Last week, in Toronto, the Ontario Court of Appeal struck down a centrepiece of the federal Conservative government's ongoing "tough-on-crime" extravaganza: mandatory minimum sentences for certain firearms offences. Five judges determined that the minimum punishments in question violate Section 12 of the Charter of Rights and Freedoms, which protects Canadians from "cruel and unusual punishment."
On the same morning, at the Supreme Court of Canada, the federal government was making its case for mandatory maximums in the Senate. The government argued that the Constitution permits Parliament to impose term limits on senators without the consent of the provinces. The government also asserted that Parliament has the power to allow voters in each province to elect their senators. The provinces, with a few exceptions, disagree.
Both legal questions are about power – about how decision-making authority is distributed among the elected and appointed officials who comprise Canada's government. Who should decide how much punishment a particular criminal deserves – the appointed judge who heard the evidence against him, or elected MPs in Ottawa? Who should decide who supplies sober second thought before legislation becomes law – Parliament or the provinces? This second question quickly gives way to a third, which lurks in the background of the government's argument at the Supreme Court: how should our senators be selected – by prime ministerial fiat or by the people themselves?
Two courtrooms, two sets of (appointed) judges, two constitutional provisions that speak to a single point of tension – between the representative and counter-majoritarian forces that our democracy has embodied from the beginning. Yet, the subtle irony of last week's legal fireworks is that they might have been avoided completely, if only the system had worked the way its creators intended.
Mandatory minimums are often stupid. Social scientists shout themselves hoarse proclaiming their ineffectiveness. More punishment, they tell us, rarely means less crime. Denunciation is a legitimate purpose of criminal penalties, but denunciation without deterrence has become an absurdly expensive habit in Canada, with federal spending on prisons climbing hastily through the billions. Mandatory minimums are most often pointless or patronizing; either they mandate hefty punishments for offenders who would receive them anyway, or else they insult the intelligence of judges, on whose discretion we depend to help protect the "justice" part of our criminal justice system. It is one thing for a legislature to use mandatory minimums to express a society's collective horror at particularly gruesome forms of criminality. It is quite another to use them to prevent a judge from doing her job.
Still, last week's Court of Appeal decision should not be confused for a broad attack on legislation that curbs judicial discretion. The ruling is a narrow one; it finds two mandatory minimums to be inconsistent with the Charter, but the Ontario court's reasoning will not likely lead many – or any – other judges to reach similar decisions about other minimum sentences.
Why? Because unwise laws are not necessarily unconstitutional. Last week's Ontario decision was an outlier; courts have tended to defer to Parliament when a punishment is challenged as "cruel and unusual" under Section 12 of the Charter. Laws must be more than dumb to be struck down.
This is where the Senate comes in – or should, anyway. Judicial review differs, at least in theory, from the Senate's "sober second thought" because, unlike judges, senators are empowered to assess the wisdom of a piece of legislation, not merely its constitutionality. If the House of Commons approves a dumb law – an omnibus bill containing a half-dozen more mandatory minimums, for example – then the Senate may investigate and expose the legislation's shortcomings, or even block or amend it, forcing the elected rabble down the hall to try again. Courts have no such power; their role is limited to ensuring that laws conform to the Constitution's commands, and most laws – even dumb laws – do. The Charter and the courts can keep legislators from imposing punishments that are cruel and unusual, but only Parliament can keep laws that are merely stupid off the books.
Doing so – by moderating the shortsighted passions of populist parliamentarians – is the Senate's proper constitutional role, and always has been. Yet, whenever the House of Commons votes for dumb-on-crime measures, the Senate – denied legitimacy by subpar appointments and railroaded by a Conservative majority that refuses to think for itself – seems only too eager to get out of the way. Unless the punishments they approve are sufficiently cruel and unusual to engage the Charter, courts then have no choice but to impose them.
What if, instead, the Senate stood up for itself, and for the national interest that it exists to protect? What if, instead of hacks and bagmen and empty shirts, we filled the red chamber with distinguished Canadians from diverse backgrounds and with distinctive policy expertise?
Yes, we might be able to abolish the Senate – constitutional niceties notwithstanding – but doing so would leave the Commons unchecked, except within the narrow limits of judicial review. No institution would remain with the power to prevent Parliament from passing laws that defy good sense but not the Charter.
We could elect senators – leaving aside, again, the minor technicality of amending the Constitution – but then there would be little to stop senators from falling prey to the same populist traps that ensnare Members of Parliament. Filling the Senate with elected politicians would reinforce the very problem that the institution is supposed to solve. Judges cannot protect us from laws that are popular, dumb, and constitutional – but Senators who need never make campaign promises or run for re-election might.
This is not merely fantasy or theory. In this space, last week, Gordon Gibson proposed a process for selecting senators similar to the one we use to appoint judges, based on a shortlist that would be supplied to the prime minister by a non-partisan panel. The government could ask the Public Service Commission, which oversees hiring and promotion within Canada's independent civil service, to develop a process for advising the prime minister on the appointment of senators. Or the prime minister could adopt a recommendation put forward earlier this year by former Ontario finance minister Greg Sorbara and create a new Senate Appointments Committee, populated by distinguished members of the Order of Canada chosen by the Governor General, whose recommendations to fill Senate vacancies the prime minister would then treat as binding. The prime minister could also skip a step, and establish a precedent for only appointing senators from among the Order of Canada's ranks.
A more independent appointments process could help to untether senators from Parliament's partisanship. So could strict restrictions on whipped party-line votes, or the removal of senators from party caucuses, or rules against their participation in partisan politics – all of which were proposed by the NDP last month. Term limits could ensure regular transfusions of new talent, provided that they are not so short as to prevent senators from taking the long view in their deliberations. Eight years would be a reasonable minimum.
Together, such reforms would equip the Senate better to perform its core institutional purpose: to limit the possibility that the Commons will wreck the country as its members seek votes. An elected Senate would be ill equipped to play this part. An abolished Senate would have no role at all.
When Canada's highest court provides its roadmap for Senate reform, it will speak to the journey, not the destination. It will be up to politicians – and, ultimately, to the rest of us – to decide what the latter looks like. As we consider the alternatives, we should remember mandatory minimums – not the ones that were struck down last week, but the ones that were not, and will not be. If we want to keep laws that are stupid yet constitutional from being enacted and enforced, the courts cannot help us. The Senate can.
Adam Goldenberg is a Kirby Simon Human Rights Fellow at Yale Law School, a former Liberal speechwriter, and a contributor to CBC News: The National.