For Pete’s Sake: MacKay’s Response to Maher

January 9, 2015

2014 was not a good year for Peter MacKay or the Conservative Party’s criminal justice agenda. 

The Courts were critical of MacKay’s tough on crime posturing and delivered ruling after ruling denouncing the Harper Government’s criminal law policy.

But it was not just the Courts who were critical of the logic behind the government’s crime agenda – experts consistently provided evidence that contradicted the justifications for the new laws.  

This is why the Conservative criminal justice agenda is doomed to fail – it is evidence not ideology that matters in court.

Last week Postmedia’s Stephen Maher took a look back at 2014 and expertly dismantled the Conservatives’ justice spin (read the article).

Maher must have struck a nerve – the truth does sometimes hurt – because Justice Minister Peter MacKay responded in an open letter.

So – lets cut through the spin and rhetoric to deconstruct MacKay’s response – paragraph by painful paragraph. 

Mr. Maher’s recent article, was a disservice to Canadians as it lacked objectivity, failed to inform and furthermore, promoted misunderstanding of the litigation process in Canada.

I am not sure in what twisted reality criticizing the government does a disservice to Canadians.  Maher cannot be said to have misrepresented anything as – unlike MacKay – he bases is argument on facts:

FACT: Crime rates are falling. Canadian crime rates have reached their lowest point since 1972; they peaked in 1991 and have been in steady decline ever since. This isn’t just a Canadian phenomenon — it’s happening in a lot of countries around the world. Unless the Conservatives have mastered time travel — and unless their crime agenda is somehow spooking the criminal classes in Europe as well — the drop in crime rates has nothing at all to do with their new laws. According to the experts, it’s mostly about demographics: An aging population sees less violent crime.

FACT: Incarceration in Canada is at record levels and its expensive.

FACT: Incarceration can actually increases recidivism rates.

FACT: The Courts have routinely ruled against the Conservatives.

Quite simply, there is nothing in Maher’s article that promotes a misunderstanding of the litigation process – quite frankly I don’t understand what MacKay means by ‘misrepresenting the litigation process’?

First, he omits to mention that our Government has fulfilled some very important justice commitments, to further protect Canadians.

Unfortunately for MacKay there is little evidence that his justice initiatives protects Canadians – but lets give him the benefit of the doubt.  Maybe he will provide us with some concrete examples.

With Bill C-48, we brought in greater offender accountability and additional tools for judges to allow for consecutive sentencing. Concretely, this led to a much tougher and fairer sentence after the horrific and multiple murders of police officers in Moncton.

Alas, Bill C-48 does not further the protection of Canadians.  Recall that this bill applies to offenders who would already be required to serve a minimum of 25 years in jail and who would be subject to a life sentence.  These individuals would only be released from custody after a federally appointed parole board deems that their release would not endanger the public. 

The fact is, and always has been, the worst of the worst are never released from jail. 

It will, however, be interesting to see if C-48 will survive the inevitable constitutional challenges.

Contrary to Mr. Maher’s assertions, we passed the Safe Streets and Communities Act, to end house arrest for serious crimes, including sexual assault and toughened penalties for those who produce, traffic and import date-rape drugs – which the Liberals and NDP chose to vote against.

MacKay conveniently omits the fact that large portions of bill C-10 – the Safe Streets and Communities Act – have already been found to be unconstitutional.  In one case the Court found that Canadians would find the Conservative position “abhorrent or intolerable’. 

MacKay also does not mention that the efficacy of minimum sentences – the foundation of bill C-10 – have been consistently criticized by experts.

It’s undeniable that crime causes irreparable damages to victims. Estimates suggest that the annual cost of crime to Canadian society is almost $100 billion. Law-abiding citizens should not be silenced and ignored. This is why we introduced legislation for the first Victims Bill of Rights in Canadian history – a bill which will create statutory rights for victims of crime and give them a voice that is heard in the criminal justice system.

Yes Peter – crime does effect victims.  But the Conservatives’ Victims Bill of Rights has been criticized as containing ‘rights’ without any remedy. 

And let’s not forget – as MacKay seems to – that this bill is the vehicle in which the Conservatives have introduced the possibility of secret evidence and anonymous trials – a Canadian Star Chamber.

Child sexual abuse causes unimaginable devastation to children and their families. The legislative measures we brought in, will better protect children from a range of sexual offences, including child pornography, while helping ensure that offenders receive sentences that better reflect the serious nature of their crimes.

Ah – the trusted and time honoured ‘think of the children‘ argument.

There is no debate that the protection of children should be a priority.  There is no question that sexual crimes committed against children are repugnant and everything should be done to prevent such victimization. 

Maher does not suggest otherwise.

Unfortunately the measures introduced by the Conservatives will likely not advance the protection of children.  

But in defending legislation that is based on ignorance why should we expect honesty from the Minister of Justice.

These legislative changes that our Government has and is making, are hardly “minimal” in impact on our justice system, and furthermore, lead to better protection for our families and communities – which I argue, is important to all Canadians.

Again – it is all about evidence – and the evidence suggests that the Conservative agenda does not protect Canadians (or do the Conservatives also take credit for the 2014 increase in gun violence in the city of Ottawa).

I do agree with MacKay that the Conservatives’ impact on the justice system has not been minimal – to the contrary it has been significant and negative.  More people in jail, less rehabilitation, less judicial discretion, multiple findings of unconstitutionality. 

Score one for MacKay.

The article also furthers a myth that our Government was alone in thinking Federal Court judges from Quebec like Mr. Justice Nadon were eligible for Supreme Court appointments. One current and several former SCC justices agreed with our position, as did constitutional expert Peter Hogg.

Will the government actually release the opinions of Mr. Hogg and Justice Charron? Will they release the instructions given to Justice Binnie (his opinion was a bit thin)? 

In any event – is it too much to ask that MacKay accurately represent what Maher said? 

On the topic of Nadon, Maher wrote: “He tried that in the spring, when he stumbled into a battle with Chief Justice Beverley McLachlin over the bungled Marc Nadon appointment.”

Maher made no suggestion that the government was alone in thinking the appointment was valid. 

What is beyond question is the impropriety of the disrespectful manner that Harper and his party treated the Chief Justice of Canada.

We have also had numerous successes before the courts with our important justice measures. This past year saw several key decisions emanating from the Supreme Court of Canada, crucial to the safety and security of all Canadians, including, Harkat and Febles, concerning immigration and refugee matters.

And what of the not so successful examples mentioned by Maher: unconstitutional victim fine surcharge legislation, retrospective parole laws, illegal data searches, and a lack of truth in sentencing.

Silence from MacKay.

Regarding prostitution, in December 2013, the Supreme Court struck down long-standing laws, adopted long before we formed Government. As such, we consulted broadly – listened to victims’ stories and experiences of various organizations – and we adopted legislation which police, communities, and women’s groups have welcomed. Recognizing the significant harms that flow from prostitution, we also announced new funding of $20 million, over the next five years to support exit strategy programming for those involved in prostitution.

Canadians can rest assured that we draft our legislation to ensure it is compliant with the Canadian Constitution. And when we refer an issue to the Supreme Court or appeal a lower court’s decision on validity, it is not about winning or losing but about seeking the Court’s opinion, to ensure Canadians are well served by the law.

The government drafts legislation to ensure it is in compliance with the Constitution? 

Seriously Peter?

Why then is Conservative law after Conservative law struck down?

Perhaps it is because the Conservatives chose to play ostrich when it comes to the Constitution.  Don’t forget that under MacKay’s watch the the Justice Department’s research budget was cut by 1.2 million dollars because it “at times left the impression that research is undermining government decisions.”

The fixation with simple win/loss scorekeeping only promotes and fosters misunderstanding of the roles of the various branches of government in the legislative process, whereas more objective writing would go a long way to help inform Canadians about the laws that govern them. Legislating is not a contest or a game – it is about keeping Canadians safer, and protecting their rights and freedoms.

I agree that some objectivity would go along way to improving the legislative process in Canada. 

Perhaps it is time for MacKay to practice what he preaches.

Respectfully submitted,Peter MacKay, Minister of Justice and Attorney General of Canada

In my experience when the word ‘respectfully’ is used the contents that proceed it are anything but.

So there is it.  MacKay – as is his style – misrepresents Maher’s column, omits facts, ignores evidence and the spin continues….

2014 was a fantastic year.

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