Wednesday, July 25, 2012

Harper calls on the courts

Harper yesterday in Toronto skated over the line in one of his remarks on the shootings in Toronto and his plug for his government's mandatory minimum sentences:
One is of course much tougher penalties for gun offences. As you know, we’ve passed a number of things through the federal Parliament. Some of those things are before the courts. Some courts have been attempting to strike down some of the tough sentences we’ve imposed. I think these events in Toronto underscore why these penalties are essential, why it is essential to have tough and certain penalties for gun crime. I’m pleased that all three levels of government have supported those kinds of initiatives, and I certainly call on the courts to take these penalties seriously. This is not a theoretical problem. That’s one of the things we’re doing.
The part that is questionable is his calling on the courts "to take these penalties seriously." It's not for a Prime Minister to call on the courts to do anything. He said it in his earnest, understated manner in order to sound perfectly reasonable. But his attempt to influence the courts is there.

The notion that the courts aren't taking the penalties seriously, even if we indulge him, is silly. The fact that judges are disagreeing with his government's proposed sentences doesn't mean that judges aren't acting seriously or considering these mandatory minimums seriously. Justice Molloy took the penalty proposed by the Harper government and carefully analyzed it in a thorough 50 page judgment. She included this statement which underscores how seriously she took the issue of the mandatory minimum sentence presented to her as an all or nothing sentencing option: “As a trial judge in Toronto,” she said, “I am painfully aware, and am reminded almost daily, of the deadly scourge represented by handguns in our community.” Reads like a judge taking the issue quite seriously to me.

That case, Smickle, is under appeal, so it is also inappropriate for Harper to have made his comment for that reason as well.

This excerpt from a speech captures well why the PM's comment should have been more carefully worded:
Unlike the other two branches, the judiciary is not accountable to any electorate or government for its decisions. Instead, the primary obligation of judges is to the law which is designed to protect all citizens. It is for this reason that judges occupy a uniquely protected place within our system of government, one which is designed to guarantee their independence from political or other influences. Indeed, judicial independence from both government influence and from other sources, including public opinion, is a constitutional right of every individual in Canada. It is the right to know that all legal questions which are brought before the courts will be resolved impartially and according to the law, without extraneous influence and intervention.
Without the politics of the day interfering. I'm sure the judges will be carrying on regardless of the PM's comments in any event.