The Hill: Harper challenged as silence of the jurists ends

Watch out, Stephen Harper. Judges have started fighting back. For the past four years, the prime minister and his government have dumped on them, calling them biased, accusing them of “judicial activism,” and describing them as Liberal hacks.

Harper’s MPs have also accused judges of being soft on crime, pandering to criminals at the expense of victims, and not knowing much about sentencing.

Perhaps Harper thought things would just go on as before and that no one in the judicial system would ever dare to stand up to him. But something different happened earlier this month. A Superior Court judge in Sudbury, Ont., Justice John Keast, defied Conservative marching orders and chose rehabilitation over punitive sentencing for a couple of boys who had set fire to a local union building. In doing so, he said long sentences brutalize society, don’t prevent crime, and waste taxpayers’ money.

Where did the judge get the courage to stand up to Harper and his Americanization of our penal system? Any number of judges could have made the same stand in the last four years. But it was Keast who did it.

Kirk Makin of the Globe and Mail reported that Keast’s stand followed a speech denouncing mandatory minimum sentencing by Ontario Court of Appeal Justice Marc Rosenberg at the Criminal Lawyers’ Association conference in Toronto. Maybe his words were an inspiration for Keast.

By coincidence, it came at a time when the Conservatives are trying to push anti-marijuana legislation through the Senate that would force judges to impose mandatory minimum sentences for growing as little as five plants. Bill C-15 has been called a horticulturalist’s nightmare. There are no judges in the Senate, but there is outspoken former broadcaster George Baker, a bulldog Liberal senator who has rallied opposition against the bill.

“We should not take away the discretion from the judge and put it in the hands of the Crown prosecutor,” Baker thundered with all the determination of Monty Python’s Black Knight.

Harper was expecting easy sailing through the Senate. After all, timid Liberal MPs in the Commons had given in and voted for it. Harper must have wondered, who is this guy Baker, anyway? Why doesn’t he take his orders from Michael Ignatieff?

Again, the political planets sometimes have a way of lining up - Rosenberg, Keast, and now Baker. Where does it end? Will the bar associations stand up, too? What if more people start challenging Harper over his criminal law agenda?

Strangely, the revolt came as Conservatives had been in the process of taking apart one of the country’s top diplomats, Richard Colvin, because he dared to write reports detailing concerns over the torture of prisoners turned over by Canadian soldiers to Afghan police, which put Defence Minister Peter MacKay in the position of denying the allegations.

Now Colvin, instead of being the Taliban dupe who got his information from “people who throw acid in the faces of kids,” turns out to have been a human rights hero as dozens of former Canadian ambassadors suddenly stood up for him last week.

Who would have thought? What if somebody had stood up when MP Maurice Vellacott went after Supreme Court Chief Justice Beverley McLachlin by saying she thought she was God and had said so herself?

It wasn’t true, but all Vellacott had to do was apologize politely in the Commons while McLachlin was left swinging in the wind having to defend herself alone and trying to prove she had never said that. When Harper abolished the Law Reform Commission and then-justice minister Vic Toews bragged he had saved taxpayers $4.2 million a year by scrapping legal advice the government didn’t need, who spoke out?

Who spoke out against mean-spiritedness when Harper’s ministers refused to recognize the work of former Supreme Court justice Louise Arbour as United Nations human rights commissioner?

How about when every single Conservative cabinet minister took a pass on anniversary celebrations for the Charter of Rights and Freedoms? Not one Supreme Court judge dared to point out the cabinet’s absence.
The challenges could have begun a long time ago, on June 12, 2000, when Harper railed against biased judicial activism. “Serious flaws exist in the Charter of Rights and Freedoms, and there is no meaningful review or accountability mechanisms for Supreme Court justices,” he said.

Is that so? What about the Canadian Judicial Council? Was everybody asleep?
Harper’s latest tirade came at a closed-door speech to Conservative supporters in Sault Ste. Marie, Ont., on Sept 2. He spoke against judicial independence and made it clear that if he ever obtains a majority, he will stack the bench with judges who are not “left-wing ideologues.”

“I ask you for a moment to imagine how different things would be if the Liberals were still in
power. . . . Imagine how many left-wing ideologues they would be putting in the courts. . . .”
Nobody in the judicial community spoke out. Why not? Was it the silence of the jurists? All of that may have changed this month. Time will tell.

Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richard
[email protected].

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