Peter MacKay’s Constitutional Blindness

January 20, 2015

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Ignorance of the law is not a defence — unless, apparently you’re the minister of Justice.

Last week, in response to columnist Stephen Maher’s indictment of the Conservatives’ criminal justice agenda, Peter MacKay took the unusual step of releasing an open letter claiming that Maher’s article did a “disservice” to Canadians by promoting a misunderstanding of the justice system.

Looks like irony is dead again — at least in Ottawa.

In his letter, MacKay assured Canadians that the government “drafts our legislation to ensure it is compliant with the Canadian Constitution.”

The Department of Justice Act requires that the minister examine every government bill to determine whether any provisions are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms.

In other words, the Justice minister now finds it necessary to assure Canadians that his department is obeying the law. But if actions speak louder than words, the government’s track record on justice bills is shouting.

In a recent response to questions posed by Liberal justice critic Sean Casey, the government confirmed that, under the Harper government, the Department of Justice research budget has been slashed by almost $3 million, or 60 per cent.

Justice research contracts have decreased by over 90 per cent — from $450,000 in 2010 to a mere $41,000 in 2014 — and the number of full-time legal researchers was cut from 34 to 18 over the same period.

The purported justification for cuts was budgetary. However, according to an internal government report, the Justice Department’s research budget was actually slashed because its findings “may run contrary to government direction” and “at times left the impression that research is undermining government decisions.”

The same internal report notes that “there have been examples of (research) that was not aligned with government or departmental priorities.”

A government that believes in fact-based legislation doesn’t starve itself of the funds required to find those facts. Unless it’s not really interested in facts at all. There, in a nutshell, is Peter MacKay’s approach to drafting laws: Ideology first, evidence never.

How can MacKay — with a straight face — assure the public that his legislation is constitutional when the government purposefully suppresses evidence to the contrary?

Suppressing evidence may just be the tip of the iceberg. It has been alleged that the government has tried to game the system to avoid legal opinions that show its legislation conflicts with the Charter.

In MacKay’s universe, words mean what he says they mean. Whistleblower Edger Schmidt — a former Department of Justice Lawyer — is suing the government over its rosy interpretation of the word “inconsistent”. Schmidt claims that the government takes the position that laws that are “likely or even almost certainly inconsistent” with the Charter will pass review if any arguments exist to support consistency.

If MacKay can’t suppress the evidence, he’s content to place his thumb squarely on the constitutional scales.

Let’s look at a concrete example — the cornerstone of Conservative justice policy, mandatory minimum sentence — to illustrate MacKay’s embrace of ignorance. In 2007 the Library of Parliament warned the government about the drawbacks of minimum sentences — their potential constitutional difficulties, their lack of utility and general uselessness:

Mandatory minimum terms of imprisonment are generally inconsistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as they do not allow a judge to make any exception in an appropriate case … A mandatory minimum sentence may constitute cruel and unusual punishment, in violation of the Canadian Charter of Rights and Freedoms, if it is possible for the mandatory punishment, in a specific matter or reasonable hypothetical case, to be “grossly disproportionate,” given the gravity of the offence or the personal circumstances of the offender.

Even the government’s own research is down on the idea. A 2005 Justice Department report found, after a review of the evidence, that:

Minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits. Nevertheless, mandatory sentences remain popular with some Canadian politicians.

MacKay can’t claim ignorance. He knows that minimum sentences don’t work and clash with the Constitution. He just doesn’t care.

Or does he? The government’s response to Casey’s questions disclosed that the Harper government has commissioned at least four additional studies of mandatory minimum sentences. What do they say? Do they provide a constitutional justification for mandatory minimums? Did the government keep commissioning new studies until it got one that said what they wanted it do? Your guess is as good as mine; the studies have never been released.

And it may be a moot point anyway, because in a written response to Casey’s questions, MacKay office seems to suggest he never read them: “Research reports and studies are sent to the minister’s office only if approval for external publication is being sought.”

Ultimately, the proof of MacKay’s feckless approach to drafting laws comes not from his PR spam or his party fundraising letters. It comes from the courts — a place where specious arguments based on wishful thinking tend to run out of air rather quickly. Mandatory sentences, mandatory victim fines, retroactive changes to parole, ‘truth’ in sentencing reforms — they’ve all been declared unconstitutional.

If MacKay truly has been running its bills through a constitutional compliance review, he’s doing something wrong. Meanwhile, he’s the last person on earth to be talking loftily about bringing the justice system into “disrepute”.

By ignoring the constitution, disregarding evidence and manipulating the review process, MacKay is the one doing the justice system — and Canadians — a disservice. He owes us an apology. Failing that, the least he could do is exercise his constitutional right to remain silent.

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