The Supreme Court of Canada ruled in October that the one-year mandatory minimum jail sentences for accessing or possessing child pornography are unconstitutional.Sean Kilpatrick/The Canadian Press
A familiar standby of the news-entertainment industry is the “Judge Said What?” story. The technique is always the same. Extract a single, seemingly outrageous line from a closely argued 250-page decision on a complex but highly charged case. Rely on the public’s ignorance of the details of the case and contempt for judges and other fancy-pants experts. Rely, certainly, on no one having read the judgment. Enjoy days of screaming headlines.
Only later, if ever, does it emerge that the offending line, viewed in context, was perfectly reasonable – or at the very least arguable. But by then the pack will have moved on to other stories, and other outrages.
We are acting out a similar scene at the moment with regard to the decision of the Supreme Court of Canada in the case of Quebec (Attorney-General) v. Senneville, on the extra-inflammatory subject of child pornography, and what penalties for possession of it are consistent with the Constitution. Only the outrage in this case is the product not of a single line, but the decision as a whole. Or at least, the decision as it has been conveyed to the public by a number of bad-faith actors: politicians, ideologues and activists.
Editorial: There can be no ‘yes, but’ for child porn
What the court actually found, in a 5-4 decision, was that the current mandatory minimum sentence of one year in prison was in violation of Section 12 of the Charter – the one banning “cruel and unusual punishment” – on the grounds that it could catch not only the depraved acts for which the two men in the cases at hand were properly convicted and sentenced, but far less blameworthy conduct: in the example cited by the court’s majority, an 18-year-old who receives a text containing an unsolicited sexual photograph of a 17-year-old.
What you would instead assume the court had found, to listen to the caterwauling, was that the two men should be set free, or given lighter sentences. Or that others convicted of the same crime should be. Politicians of all parties competed to hurl the most furious insults at the court, and – by now it is as predictable as the tides – to demand that the notwithstanding clause be invoked to restore the law in its entirety.
But the judges in the court’s majority found no fault with the sentence meted out to the two men. Neither did they take issue with the one-year minimum generally – in fact they suggested more severe sentences might often be justified. It was rather the unyielding uniformity of it, even in much less serious cases, that concerned them.
This appeal to hypothetical cases, rather than the case in front of them, attracted particular scorn from some critics – as if the judges had adopted an especially novel and unsound line of reasoning. In fact the use of “reasonably foreseeable” hypotheticals to decide Section 12 cases goes back decades. Neither is it objectionable to most conservative jurists, in principle. Indeed the court has cited hypotheticals in the past not only to strike down minimum sentences, but in some cases to uphold them.
The notion that the court, presented with a manifestly unconstitutional law, should nevertheless avert its eyes until an actual victim comes before it, may appeal to the radical right, but mainstream conservatives have traditionally been more concerned that the hypothetical should in fact be reasonably foreseeable – the kind of case that is likely to occur in reality – and not extreme or far-fetched. Is the scenario described above far-fetched? Hardly. Similar cases crop up regularly.
Well, all right. But if there is no objection to the law’s general thrust – if the issue is preventing an injustice in certain exceptional cases – surely there are less drastic remedies than throwing out the law altogether? Everyone agrees that possession of child pornography should ordinarily be punishable by at least a year. Couldn’t the law be redrafted to say that a one-year minimum should be the general rule, but that an exception can be made in certain cases, where it can be shown that a one-year sentence would be “grossly disproportionate”? Why hasn’t someone proposed this eminently reasonable compromise, instead of leaving us with this iniquitous false choice, between the law as it stands or no law at all?
In fact someone has. “Parliament could, among other things, limit the scope of mandatory minimum sentences to certain conduct … a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment. … It seems entirely conceivable … to adopt a sentencing scheme where these penalties are affirmed as essentially presumptive rather than a strict framework from which deviations are not possible.”
Who is this pragmatic legal scholar, who offers us a way out of the legal dilemma into which we have been plunged by this runaway court? Er, the court, actually. It’s right there in the decision: paragraph 113. Had the people hyperventilating about “judicial activism” and “out-of-touch liberal judges” bothered to read it – were they sincerely concerned with stopping child pornography, and not scoring cheap political points – they would have addressed themselves to finding remedies such as this, or others that have been proposed, rather than reaching automatically, as if by reflex, for the notwithstanding clause.
But that would be to admit that the lazy cliché of a helpless Parliament, at the mercy of a lunatic judiciary hell-bent on destroying society, has no basis in reality. The courts do not, as a rule, inquire into the purpose of a law, but only whether in pursuit of this purpose the law goes further than is strictly necessary. It is insufficient that a law violates the Charter: it must have done so to an extent that cannot be “demonstrably justified in a free and democratic society,” as in the Charter’s famous Section 1. You’d be surprised how eager the courts are to give governments the benefit of the doubt.
But even where a law is found to have gone too far, it is almost always open to Parliament to redraft the law to correct the overreach, without prejudice to its original intent. Indeed, the courts as often as not offer suggestions for how this might be done, much as the court did in this case. It is always open to Parliament, that is, to do its job. Far from being implacable enemies, the two branches of government ought properly to be seen as collaborators, in the common cause of drafting laws that address important public concerns without unduly infringing upon the rights that Parliament saw fit to entrench in the Charter.
Why, then, the instant demands for the notwithstanding clause to be invoked? Because that is what this was all about from the start. The critics had only to see the words “child pornography” and “Supreme Court” in the same sentence before leaping to their keyboards. You can imagine their glee. Who wants to be seen as soft on kiddie porn? Notwithstanding now!
And they have the gall to call this a “reasonable compromise”! The reasonable compromise in this case would be to make the kinds of modest changes to the law needed to address the court’s Charter concerns. Instead, we are presented the phony “compromise” of mindlessly repassing the same law, using the notwithstanding clause to muzzle the court and run roughshod over the Charter.
If the notwithstanding clause were such a reasonable compromise, you would think that other countries would have followed our lead, enacting similar constitutional overrides. In fact none has. Nearly all of the major democracies have some equivalent to the Charter of Rights: a list of constitutionally entrenched rights, enforceable by the courts. None has anything resembling the notwithstanding clause.
There are, of course, exceptions to the general rule: democracies that have not enumerated the rights of their citizens in a written constitution, such as the United Kingdom, New Zealand and Australia. These aren’t such unspeakable hellholes, are they? Maybe the whole business is unnecessary: the Charter, judicial review, the lot.
But the argument for the Charter is not that without it, we would inevitably descend into the long, dark night of dictatorship. It is only that it makes us a freer and fairer place, at the margin, than we would be in its absence. There’s plenty of evidence of that to be found in our own experience, as a review of Charter jurisprudence would confirm. But there’s also evidence from cross-country comparisons.
Whether you look at the annual Freedom in the World rankings compiled by Freedom House, or the Liberal Democracy Index maintained by the V-Dem Institute at the University of Gothenburg in Sweden, or the World Justice Project’s Rule of Law Index, or a number of others, the same countries’ names show up near the top: Sweden, Norway, Finland, Switzerland, Denmark, Germany, Belgium … and Canada. Australia and the U.K. consistently rank below them, and us.
True, so does the United States: famous for its Bill of Rights and for its robust system of judicial review, it is also afflicted with deeply embedded social antagonisms and other cultural attributes that weaken its attachment to rights in practice. Meanwhile New Zealand, though it does not entrench rights in a written constitution – its 1990 Bill of Rights Act is an ordinary statute, much like our own Bill of Rights (the Charter’s predecessor, passed by the Diefenbaker government in 1960), and as such cannot be used to strike down other laws – is nevertheless so steeped in a culture of rights that its record compares favourably to Canada’s.
What does that tell us? Rules are not the whole story: so is culture. A country with a strong rights culture but weak constitutional protections may perform better than a country with the opposite attributes. Nevertheless, other things being equal, countries with entrenched bills of rights, backed by a strong system of judicial review, seem to do better than those without.
Rules, moreover, interact with culture. As much as it might be said that rules are downstream from culture – unless there is already a political consensus that rights should be respected, it will not occur to a country to entrench them – it is also true that culture is downstream from rules: the act of framing and enacting rules, and the subsequent structuring of political debates around them, can help to sustain a consensus in support of the underlying principles.
That is a pretty fair description of the path Canada has taken post-1982. It would be a shame if we should be stampeded, by the skillful exploitation of a handful of controversial cases, into falling off it.