Martin: Let's clear up some misconceptions regarding Bill C-16

There has been much criticism of the Liberal government’s Bill C-16 as it pertains to mandatory minimum punishments for a variety of crimes, many relating to child victims.

Critics point out that although the government of Prime Minister Mark Carney is proposing to reinstate many mandatory minimum punishments that have been struck down by courts, the bill allows judges to ignore those provisions in extreme cases.

Some, including opposition leader Pierre Poilievre, are suggesting the government instead should be invoking the notwithstanding clause to override judicial pronouncements that minimum punishments violate the Charter by amounting to cruel and unusual punishment.

But instead of invoking a clause in the Charter intended for only the most extreme cases, the federal Liberals are doing the prudent thing.

Notwithstanding clause

First off, let’s look at the notwithstanding clause and what it really means.

In Alberta, of course, we have recently become all-too-familiar with the invocation of Section 33(1) of the Charter, which allows provincial legislatures, or Parliament, to pass laws which violate the rights of certain individuals, despite the fact Section 1 of the Charter allows such laws to remain on the books if they create “reasonable limits” that “can be demonstrably justified in a free and democratic society.”

Governments who invoke the notwithstanding clause not only admit they are breaching individual rights, but are admitting they can’t justify those measures in the context of a “free and democratic society.”

One need look no further than rulings in impaired driving cases which have found Charter violations for arbitrary detention and the right to instruct counsel without delay can be justified because of society’s need to do all we can to get those drivers off the roads.

So governments can pass legislation they know breaches the rights of certain individuals if those breaches are justified if they can establish the law is for the greater good.

In utilizing the notwithstanding clause, elected officials are conceding their legislation can’t pass muster when analyzed under the microscope of reasonable limit.

Which brings us to the mandatory minimum punishment feature in Bill C-16, which allows sentencing judges to find such penalties can amount to cruel and unusual punishment, which would violate an individual’s Charter protection.

Many decry this allows “unelected judges” to overrule the wills and wishes of our elected officials, which comes straight out of the Donald Trump playbook and clearly misstates what is occurring.

When judges find the rights of someone before the courts have been violated, they’re not substituting their opinion for those of elected politicians, they’re invoking the rules. It would be like arguing hockey referees shouldn’t be allowed to call penalties because it’s the players fans are there to see.

Judges, like referees, are simply invoking the rules; rules established by previous elected officials, and fortunately, unlike the NHL, judicial decisions are subject to appeal.

Bill C-16, among other things, is a response to courts finding there can almost always be an exception in criminal cases where the punishment won’t fit the crime. The most recent example of this is the Supreme Court’s ruling finding unconstitutional the mandatory minimum of one year in jail for possession of child sexual abuse and exploitation material (the new nomenclature for child pornography).

Hypothetically speaking

The court, looking at hypotheticals, said that would mean if an 18-year-old texted a friend a photo of him having sex with his 17-year-old girlfriend, the friend would then be in possession of child porn and face a minimum 12 months behind bars.

Critics decried this as irrational, suggesting charges would never be laid in such a case.

Related

But under the new regime Bill C-16 only gives judges the power to stray from the minimum when charges are laid in such cases.

No need for hypotheticals. If the punishment doesn’t fit the crime judges can ignore it.

KMartin@postmedia.com

X: @KMartinCourts