Applauding Quebec Bar’s legal challenge

A Quebec Bar Association legal challenge against parts of the federal Conservatives’ tough-on-crime agenda represents democracy at its finest, says Toronto criminal lawyer Roots Gadhia.

“I can only hope that other provinces will join this endeavor,” says Gadhia.

The association has filed a motion in Quebec Superior Court seeking to strike down sections of Bill C-10, the Huffington Post reports. Read Huffington Post

The targeted sections involve mandatory minimums, which are penalties that set minimum sentences and leave judges with little latitude if they want to convict someone and give a lesser punishment, the report says, noting the bar association says that not only do mandatory minimums not end up protecting the public, but they represent an unconstitutional interference from one branch of government, the legislature, in the business of another, the judiciary.

“The public has been hoodwinked into a false sense of security believing that Bill C-10 is necessary,” says Gadhia. “Despite clear evidence that crime is at an all-time low and that sentences that do not take the individual circumstances into consideration do nothing to abate future recidivism, the Harper government is appealing to a base desire for punitive retribution.”

Gadhia says the federal government’s tough-on-crime agenda has “failed to consider numerous studies and input from lawmakers, academia, the judiciary and the bar, all of whom have empirical evidence that clearly shows that mandatory minimums have already been tested and failed.”

Gadhia looks to Canada’s neighbours to the south to compare the effectiveness of the bill.

“They are suffering the consequences of these ineffective deterrents, which are not only an expensive outlay of public funds that do nothing except create overcrowding in our prisons, but overburden our judicial system,” she says. “Taking away judicial discretion in sentencing will do nothing but force individuals to consider taking matters to trial.”

A central pillar of the judicial system is an independent judiciary, one that is free of political interference and public pressure, says Gadhia, referring to a passage from a decision by Justice Frank Iacobucci in R. v. Hall (2002):

“At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never fully be compensated for, therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.”

Additionally, Iacobucci emphasized:

“…the role of this Court, and indeed of every court in our country, to staunchly uphold constitutional standards is of particular importance when the public mood is one which encourages increased punishment of those accused of criminal acts and where mounting pressure is placed on the liberty interests of these individuals. Courts must be bulwarks against the tides of public opinion that threaten to invade these cherished values. Although this may well cost courts popularity in some quarters, that can hardly justify a failure to uphold fundamental freedoms and liberty.”

Gadhia says in order to function properly, the judiciary must be independent.

“Each case comes with its own unique facts, which have to be taken into consideration.

Was the arrest a lawful one? Were there any violations of Charter rights? Despite these violations, was the evidence admitted? Should the sentence reflect that despite the admission of evidence?,” she says. “Taking away a judge’s ability to review each individual case and understand the dynamics of the accused, the circumstances around their arrest and the appropriate sentence cannot be legislated by a government bent on denying individual rights.”

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