by Irwin Cotler
MP, Mount Royal
reprinted from the Huffington Post (Feb. 22, 2012)
Last week, the Ontario Superior Court ruled that a mandatory minimum sentence imposed against a first time offender violated the Charter of Rights and Freedoms' prohibition against cruel and unusual punishment. In a strongly-worded judgment, Justice Malloy described the punishment as, "fundamentally unfair, outrageous, abhorrent, and intolerable."
Yet this decision is but the latest in a growing list of instances where the judiciary has found the Harper government's law and policy to contravene the Charter while ignoring the rule of law, all this in the year we celebrate the Charter's 30th anniversary.
Last Monday's decision comes on the heels of the Federal Court's decision in Goulet v Canada, in which the Court similarly chided the Harper government for ignoring the law, acting as if it were above the law, while showing disrespect for the rule of law as a whole. In the Goulet decision, the Federal Court reproached the Conservative Government for a lack of transparency in refusing to transfer Canadians in U.S. prisons back to Canada.
Justice Robert Barnes' ruling found that Public Safety Minister Vic Toews failed to provide adequate reasons for rejecting transfer in the case of Richard Goulet, a 42-year-old Canadian jailed in the U.S. While Correctional Services Canada's evidence-based report concluded that Goulet was unlikely to re-offend and was therefore a suitable candidate for transfer back to Canada, the Minister decided against this without giving adequate reasons.
Indeed, Justice Barnes remarked that the Minister gave little consideration to the significant evidence in favour of Goulet's transfer, describing the Minister's decision as a "bare conclusion that ran contrary to the overwhelming weight of evidence."
When viewed in the context of previous Federal Court judgments on this point, Minister Toews' decision is particularly troubling. Indeed, the Federal Court cited 12 decisions that it has issued over the past four years alone, all of which conclude that the government has a legal duty to provide adequate reasons when rendering decisions that affect the lives of Canadians.
Mr. Justice Barnes invoked the 1959 Supreme Court decision of Roncarelli v Duplessis, a landmark precedent that affirms the principle that all government officials are subject to the rule of law. Barnes reminded the Minister of the Roncarelli Court's conclusion that there is "no such thing as absolute and untrammeled discretion."
In other words, while Ministers enjoy a measure of discretion in decision making, transparency and accountability require them to justify their exercise of discretion. Only when Ministers provide reasons for their decisions, can it be demonstrated that they have not acted arbitrarily. Furthermore, as Monday's Ontario Superior Court case has demonstrated, such discretion can be limited by rights enshrined in the Charter.
Regrettably, Goulet's case bares troubling resemblance to that of Ronald Allen Smith, the only Canadian citizen currently on death row in the U.S. Despite Canada's international legal obligations and court rulings requiring the Government to seek clemency for citizens imprisoned abroad, the Harper government refused to seek clemency on Smith's behalf until it was forced by the Court, which deplored the lack of a clear, consistent policy from the government on the issue of clemency.
Goulet and Smith are among a growing number of Canadian citizens -- imprisoned, stranded, or detained abroad -- who have been arbitrarily denied the protection of the government. Another example is the case of Abousfian Abdelrazik, a Canadian citizen who was denied the government's protection when he was wrongfully imprisoned and stranded for six years in Sudan. The Federal Court ultimately compelled the Conservative government to return Abdelrazik to Canada, concluding that the government had violated his rights under the Charter.
Moreover, the Federal and Supreme Court had both found that, with respect to Omar Khadr, the government had failed to respect its Charter obligations, though the Justices stopped just short of requiring the Minister to demand Khadr's repatriation.
The government has also neglected its duties to Canadians citizens in a number of recent high profile domestic cases. As a result, the judiciary has been required to intervene to prevent the Conservatives from pursuing their agenda in disregard of the law of the land. Just this December, for example, Federal Court judge Douglas Campbell found the Conservative government broke the law in introducing legislation to end the Canadian Wheat Board.
In another recent example, the Supreme Court overturned the Minister of Health's decision with respect to Insite, a safe injection site on Vancouver's Downtown East Side. Despite overwhelming medical evidence that the facility reduces drug-related deaths and HIV infection rates, the government campaigned vigorously to shut down the site by refusing it a permit to continue operations. The Supreme Court found that such a decision was not possible, given it violated Section 7 of the Charter and its protection of "life, liberty, and security of the person."
Simply put, we are witness to an increasing need for the Courts to remind the Conservative government that it is not above the law and cannot act with impunity -- or immunity -- for its actions.
Indeed, these recent court rulings are important reminders of this, and the government would do well to heed their words.