In any well functioning democracy, there are checks on power. In a country like Canada those checks can take a variety of forms. The most obvious is the voter. While elections are often separated by several years, every government knows that at some point it must appear before the ballot box for the voters to pass electoral judgement. This naturally serves as a check on the actions of any government.
Another check on the power of government in Canada is the Constitution to which all laws, with few exceptions, need to conform to. It is left to the courts to determine when government legislation steps beyond these boundaries and is deemed unconstitutional. The courts themselves serve as a check on government. To undertake this duty the courts have long argued for complete independence including on things such as the continuing education judges are required to take, judicial salaries and benefits, and sentencing. Many of those in judicial circles have long argued against measures such as mandatory minimum sentences, saying they remove the independence of judges.
These mandatory minimum sentence laws have come from elected officials responding to public outcry for sentences that have been deemed too lenient by societal standards. Rightly or wrongly, the outcry has only grown over the last many years as violent and sexual crimes have increased.
For that reason, many Canadians, and elected officials across Canada, responded with outrage when the Supreme Court of Canada struck down, in a close 5-4 decision, the mandatory one-year sentence for child pornography crimes. While the case before the Supreme Court dealt with offenders who had more than 1000 images of horrific child pornography, the court chose to imagine an entirely different type of case that they believe could lead to unfairness if the one year minimum were applied.
While there were other means by which the court could have expressed the concerns they had about different types of cases other than the one they were contemplating, they chose to use the opportunity to strike down the one-year mandatory minimum sentence for child pornography deeming it unconstitutional. Some have speculated that this is just another in a long line of situations where judges simply don’t feel they should have their discretion on sentencing in any way interfered with.
Whatever the case it has left the public angry. One professor responded to the case by suggesting that offering judges more flexibility on child pornography sentences helps to preserve public confidence in the justice system. Judging by the response from Canadians, it is doing the opposite.
In the middle of this is an ongoing debate of the proper use of the Notwithstanding Clause, which is section 33 of our Charter of Rights and Freedoms. Government can apply this clause to save legislation that the courts otherwise have deemed unconstitutional. In this situation, the federal government could use it to preserve the mandatory minimum sentence on child pornography, and that is exactly what many elected leaders and citizens have demand happen.
Ultimately it comes down to a decision of who should have the final say. The judiciary has argued for years that their decisions are separate and apart from politics. Elected officials have argued that they are the branch of government that is accountable to the public.
The Notwithstanding Clause is rarely used and that is as it should be. In fact, it has never been used in Manitoba or applied to federal legislation. But there is good reason why so many elected officials, including myself, have called on it to be used to uphold mandatory minimum sentences for child pornography crimes. And those calls have been echoed by the public. Because when the system of checks and balances seems to have lost its balance, their needs to be a way for those who are accountable to the public to ensure it is restored. The Notwithstanding Clause allows that to happen. And how well any government uses that ability will ultimately be judged by a democracy’s greatest check, the ballot box.
