Peter MacKay's Misuse of the Rule of Law

Overlooking the seat of the Canadian Senate, Parliament Hill, Ottawa Canada. The room is often called the Red Chamber.
Overlooking the seat of the Canadian Senate, Parliament Hill, Ottawa Canada. The room is often called the Red Chamber.

Former Justice Minister Peter Mackay wrote a special post for the National Post titled, "Respect the rule of law." The rule of law means that no one is above the law--yes, even politicians or prime ministers.

It's true: Canada's highest court struck down criminal laws enacted by a parliament, though arguably, neither democratically elected nor accountable. While MacKay's party may have enacted laws and engaged in law reform, these law reforms were not meant to "re-balance" our justice system. And if MacKay wants to talk about the "groundbreaking [sic] new Victims Bill of Rights" or the "youth and child advocacy centres", the Supreme Court touched neither the Victim Bill of Rights nor these centres.

Over the last decade, the only institution that seemed at odds with the Supreme Court was (oddly) the Conservative Party of Canada. Also, nobody enforces the rule of law; it exists independently of all laws--everyone benefits when we actually use this concept correctly. And, ultimately, the only demand for greater accountability seemed to remedy itself once this same party failed to capture another majority during the last election. I would say that is demonstration of the public demand for greater accountability in its clearest form.

While MacKay quotes part of the dissent in the decision to strike down unconstitutional laws in his special post, he quotes the dissent out of context (and perhaps the dissent quotes these decisions out of context).

The dissenting judges cite Nasogaluak when talking about mandatory minimums as a "forceful expression of governmental policy in the area of criminal law" (in R v Lloyd at para 60). That is the particular citation MacKay also quotes.

In that citation in R v Lloyd, the dissenting Supreme Court Justices refer to a specific and unique framework and when applied, includes some very serious considerations. For instance, as held in R v Nasogaluak, courts must consider any instance of police violence in reducing a sentence for a mandatory minimum (in Nasogaluak at para 53). In that same decision, Canada's highest court also held that a sentence can be reduced because of state misconduct even when there is no Charter breach (in Nasogaluak at para 53).

And when Mackay quotes the following, "Parliament is owed substantial defence in crafting mandatory minimum sentences", he must have surely noticed that the dissent was referring to a decision which prohibited a man from driving for three months--in an effort to protect the vulnerable people who drive our dangerous highways and roads every single day (See R v Goltz, [1991] 3 SCR 485). That same court in the Goltz decision held when a bad driver scores more points, it's not good and not having bad drivers on the road is good. I mean, don't we want to protect the poor innocent children who are at-risk of bad drivers?

Also, when MacKay decides to highlight that only in "rare and unique circumstances" a mandatory minimum will violate the Charter. Yes, it is true that the dissenting judges state something similar. However, they are referring to a decision which states, "It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter" (Steele v Mountain Institution, [1990] 2 SCR 1385, at p 1417f). This test, however, was for reviewing sentences in general. Also, the Steele decision involved a dangerous offender designation. Something quite different than the factual circumstances in R v Lloyd.

Strangely, however, MacKay also quotes Supreme Court Justice Moldaver, which looks like a quote from a Supreme Court decision but it's not. Based on the absence of a 2011 archives for Judicial appointments, I am assuming from media articles (like this one here) that this quote comes from such committees.

Additionally, MacKay's reference to activist celebrations losing sight of "basic facts" does not refer to any facts; rather, he draws an illogical conclusion. Specifically, he states, "Recidivism rates in some areas of our justice system are on the rise and public confidence in our system is waning and turning victims in particular away from reporting." I would suggest that recidivism is on the rise because the lack of social supports in communities to help rehabilitate prisoners--an objective of the Criminal Code. And, the reason victims don't report is largely because victims don't trust the current system to provide justice. Despite his insistence on focusing on the facts, MacKay then makes reference to the Truth in Sentencing reforms in 2009. These reforms could definitely be linked to those increasing recidivism rates MacKay refers to in his previous paragraph.

Still, while calling for protection of the vulnerable is a laudable goal, to say that the court is encroaching over Parliament's power to enact legislation is a misuse of the rule of law. A democratically elected and accountable Parliament should not enact laws that violate our Charter rights and civil liberties and by appealing to emotion (aka protecting the vulnerable), it is nothing more than a weak, illogical argument (not based on any law).