Wednesday, September 24, 2008

The Conservatives Are Legally Ignorant

The Conservative Party has proposed that upon re-election they will create a new law directed to combating violent youth crime. Unfortunately due to a failure to stay current with Canadian law the Conservative Party has only illustrated their ignorance concerning the Canadian legal system.

The Conservative website describes the campaign promise of a tougher law on violent youths:

The law will ensure that persons aged 14 and older who are convicted of serious violent offences (presumptive offences) are automatically subject to enhanced youth sentencing (which includes life sentences).
The Conservatives use the term enhanced youth sentencing but as they include 14 year sentences for violent offences and life sentences for first- or second-degree murder, the Conservatives are clearly referring to the imposing of adult sentences on violent young offenders. This is clearly evident by the fact that there isn't a more adult sentence then life in prison.

Why this is important is because the Supreme Court of Canada as recent as May 2008 ruled in the case of R. v. D.B., 2008 SCC 25 that:
A young person who commits a presumptive offence should not automatically be presumed to attract an adult sentence.
The Court went on to state if there was such a presumption it would be in conflict with Section 7 of the Constitution and therefore be unconstitutional. This ruling therefore invalidates that significant portion of the Conservative campaign promise.

If one major flaw wasn't enough, the proposed Conservative violent youth crime law contains yet another. On the same Conservative website it states that in regard to violent young offenders "upon conviction they will be named and a publication ban will not apply." The problem with this is that the Supreme Court in the same ruling as cited above stated:
The onus on young persons to demonstrate why they remain entitled to the ongoing protection of a publication ban is also a violation of s. 7 of the Charter.
So again another feature of the Conservatives latest campaign promise is shown to be contradictory to our constitution, and only adds to the evidence that the Conservative Party does not have enough sufficient knowledge of our legal system to be guardians of it.


Beijing York said...

Fantastic entry. One almost suspects that Stephen Harper is better versed with the US system than Canadian one.

Scott Tribe said...

Actually.. I believe Harper could invoke the Notwithstanding Clause to override Section 7 of the Charter and the Supreme Court Decision if he wanted to enact this.

Anonymous said...

Theoretically it is true Harper could, but I believe he could not realistically. It would be one thing to get enough votes for it, but actually overriding the reasoning behind s.7's principle of fundamental justice is another matter.


Scott Tribe said...

Don't kid yourself.

He hates the "liberal courts" as well as the "ivory towoer academics" who call these measures ineffective.

Beijing York said...

Well there certainly is that fear scott. He does hate the SCC and I think he is already trying to stack the courts with partisans (although he would probably accuse the Liberals of the same thing).

The bottom line is that we cannot expect Harper to respect our current judiciary or legislative systems.

wilson said...

Oh Scott, read a little outside the Liberal rags.
Judges still have the last say, and the provinces judicial system sets the age, 14 and life sentence is not mandatory.

Anonymous said...

Wilson: I believe you are not that familiar with how judges make decisions. They do not only, and in fact, cannot only make a decision my citing precedent or by going by what a law specifically says for there are cases if not all cases that need an interpretation of the law for a specific circumstance.

Thus judges take many things into consideration to come to a conclusion in a specific case and that includes what was the authors intent of the law.

If the Conservatives do implement their unconstitutional law through the notwithstanding clause, judges would surely interpret the reverse onus on the youth as an expressed intention of the spirit of the law to be more focused on sending youths to prison for life then determining their moral culpability.

I suggest you read the Supreme Court ruling in question or any other Supreme Court ruling because in every ruling I've read the justices do exactly as I have just described.


Anonymous said...

Scott Tribe: Hey I agree that it is theoretically possible that Harper could use the notwithstanding clause, but I don't think it would be realistic to even think he would.

1. He would have to have enough support in Parliament to do this. A) Either the Conservatives will have enough seats i)But even then have to convince all of them to override the Constitution let a lone our guiding principle of fundamental justice, B) Or the Conservatives don't have enough seats to use the notwithstanding clause and if this is the case I don't see any party supporting the Conservatives in this.

2. He would have argue to Parliament and to Canadians why the Notwithstanding clause has to be used to override our Constitution, something I think is more politically disastrous then you give it credit. It would be a Prime Minister arguing to ignore our most important document, well at least an important part of it, and to me that seems unarguable.

3. The Notwithstanding clause can only exist at 5 year increments before having to get approved again which would make the Conservative law temporary or at most always seen as susceptible to defeat. The Conservatives, and hopefully all Canadians would see this not as a long term fix and eventually the absolutism and concrete-ness of our Constitution would win out thus inclining the Conservatives not to use the notwithstanding clause.

What I think is the Conservatives proposed this in haste and did not do their research or they threw this out to appease their base. Of the two I think it is most likely the latter.


Anonymous said...

Beijing York: I don't expect him to respect our judiciary, I just expect him to be familiar with it.