Like The Hub?
Join our community.
Join

Norman Siebrasse: Stick to the law, Supreme Court. Leave politics to the rest of us

Commentary

The official X account of the Supreme Court of Canada recently tweeted that “Achieving gender parity among judges at all levels in Canada is a step in the right direction towards having greater diversity on the bench.” No doubt many people agree with this statement. But that does not make it appropriate.

That is because it is a political position about the “right” direction to take the country—and a contentious political statement at that. In the United States, about two in three Americans (68 percent), including a majority in each ethnic group, said that last year’s ruling by the Supreme Court of the United States ending the use of race and ethnicity in university admission decisions is “mostly a good thing.” In Canada, one poll has suggested that a significant majority of Canadians would support a constitutional amendment to prohibit affirmative action programs.

Of course, the Supreme Court should not be making statements one way or the other based on what a majority of the population thinks. That is exactly the point. The Supreme Court must decide cases according to law, not according to politics.

As the Supreme Court has explained, “public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.”Wewaykum Indian Band v. Canada 2003 SCC 45,[2003] 2 SCR 259 ¶ 57. Bias or prejudice means “a leaning, inclination, bent or predisposition towards one side or another or a particular result…it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction.”Wewaykum Indian Band v. Canada 2003 SCC 45,[2003] 2 SCR 259 ¶ 58. In order to ensure public confidence in the courts, even the appearance of bias must be avoided. That is why judges cannot speak publicly on any matter that may come before them. Issues relating to affirmative action are not only political, they are also legal.

For example, the Ontario Human Rights Tribunal has held that it is not contrary to the province’s Human Rights Act to discriminate against white people.Lisikh v. Ontario (Education), 2022 HRTO 1345 (CanLII) ¶ 19. If that case, or one like it, were to be appealed to the Supreme Court, could we be confident that the Court does not have a predisposition to decide the issue a certain way?

This is a particularly unfortunate time for the Supreme Court to be chiming in on this political issue. It is well-known within the legal profession that the Trudeau government is aggressively pursuing an agenda of diversity hiring in appointments to the judiciary. The Supreme Court of Canada should not be seen as endorsing a divisive political agenda that relates so directly to the demographic composition and ideological orientation of the judiciary.

It might be said that there can be no objection to the Court endorsing an affirmative action program because section 15(2) of the Charter permits affirmative action. But just because a governmental policy is constitutionally permissible does not mean that it is normatively desirable. Applying affirmative action to judicial appointments is a controversial political decision. Even if it were clearly constitutional, it would not be appropriate for the Supreme Court to act as a cheerleader.

Suppose the Court had decided a case on the constitutionality of carbon taxing and decided in a unanimous decision that the tax was clearly constitutional. It would nonetheless be inappropriate for the Court to tweet the next day “The carbon tax is a great policy measure that we wholeheartedly endorse.” Any such statement would cause us to question whether the Court had come to its conclusion based on legal reasoning or on the basis of partisan politics. We aspire—or we used to aspire—to a Court that is above the political fray. 

Supreme Court of Canada justices before a ceremony at the Supreme Court, in Ottawa, Feb. 19, 2024. Blair Gable/The Canadian Press.

Further, it is one thing to say that the Charter protects affirmative action programs and another to say that a particular affirmative action program is constitutional. Suppose an affirmative action program provided that disadvantaged youth of South Asian, East Asian, Hispanic, or Pacific Islander background could apply for a full university scholarship, but youths of an African background were ineligible. Would that be constitutional? That would turn on the interpretation of section 15(2). The fact that the Charter permits affirmative action in broad terms does not mean that it permits a program such as just described. Any legal question turns on the details of the law and the specific facts at hand, and in the absence of legal analysis and evidence, it is inappropriate for the Court to comment. 

The Court followed up by tweeting that “Canadians need to see themselves reflected in their judiciary because that builds trust in our democratic institutions.” This raises similar problems. Again, this is a very common sentiment—but is it true? At least one study shows support for the intuition that same-race judges are more likely to impose harsher sentences, which might suggest that criminal defendants would prefer a judge of a different ethnicity. Of course, one study does not establish this is true, and even if it is true, it is debatable as to whether that should influence how judges should be appointed.

But that is the point: that people prefer judges of their own ethnicity is debatable, not a self-evident truth. More generally, is it true that Canadians are so race-conscious that their trust in the judiciary is based on the ethnicity of the judges, rather than on the care and transparency of the process and reasons? That is an emotional and disputed question, and the truth lies in facts and evidence, not intuition. 

It is inappropriate for the Supreme Court to be making extra-judicial statements on controversial matters of fact and policy. The official X account of the Supreme Court of Canada is written by staff, not by the judges themselves, and this particular tweet was probably the work of a young staffer. But social media is the new town square. Canadians will reasonably look to official social media statements as a reflection of the views of the Court itself. Presumably, the chief justice has authority over the account. Whether this tweet reflects the actual views of the Court or merely appears to do so, public confidence in the Supreme Court as an institution has been undermined.

Michael Kempa: Crime is surging and Canadians are being left with one message: You’re on your own

Commentary

When it comes to skyrocketing auto theft across Canada—double-digit percentage increases more frequently tied to carjackings and breaking into homes in search of keys—recent frank personal safety advice from the Toronto Police Service has sent a clear and unfortunate message to Canadians: You are on your own.

Last week, statements made by Toronto police constable Marco Ricciardi at an Etobicoke public safety meeting earlier in February went viral, and for good reason. Ricciardi warned that car theft is now so aggressive and so brazen, that residents would be wise to leave their key fobs close to their front doors. Why you might ask? To prevent car thieves from entering deeply enough into homes that violent confrontations with owners would become more likely. These thieves are armed with “real” and “loaded” guns, the constable Ricciardi ominously intoned.

Suggesting that citizens simply give up and make it easier for car thieves to steal their property reads like an admission that the police have lost control over a dangerous and costly problem. Auto thefts are exploding across Canada, with Ontario in particular becoming a “candy store” fueling a rail pipeline that runs to the Montréal ports and global markets directed by organized crime.

In Toronto, vehicle theft is up 150 percent over the past six years, with insurance associations listing it as over a 1.2 billion dollar problem. The city’s police chief recently stated that there were over 12,000 vehicles stolen in 2023—a 24 percent increase in a single year and a 300 percent increase since 2015. A vehicle is now stolen approximately every 40 minutes in Canada’s most populous city.

It is not reasonable to tell citizens to fend for themselves against such sophisticated and motivated adversaries.

Organized crime expands its tentacles into all opportunities for extraordinary profit. The pandemic has created many such exploitable distortions, including human trafficking, trading in counterfeit vaccines, and coordinated shoplifting.  In the case of auto theft, prices of newer used vehicles have been driven sky-high due to the scarce availability of new inventory and supply chain disruptions for microchips, which slows down production.

With a lucrative market at their feet, organized criminals have exploited loopholes in Canadian law to run circles around police officers.

The first involves simply taking advantage of jurisdictional ambiguities and the inertia that results when multiple agencies involved in combating auto theft bump up against one another. 

When a car is lifted from an innocent person’s driveway, it is often then parked for a day or two in a public place and monitored by thieves at a distance to determine whether the vehicle is being electronically tracked. This is most often done by private companies whose owners contract for these services. If these companies are actually able to locate the stolen vehicle, they typically mobilize police. However, if there are no suspects on the scene, these officers treat the theft as a low-priority call. Remember they also have assaults, break-and-enters, and domestic violence to deal with.

Often, thieves will then move that untended vehicle by train, which is under the separate jurisdiction of railway police.

It could then arrive at  Montreal shipping ports, under the watchful gaze of the Canada Border Services Agency. Keep in mind, on a typical day, there are mere single-digit CBSA agents available to monitor thousands of shipping containers at a major port. Even if police know a vehicle is in a particular port yard, it becomes a needle in a haystack. There is but a minute number of border agents literally working against the shipping clock to find it. Meanwhile, regular police are often left waiting on judicial warrants to lend assistance.

The second loophole criminals regularly take advantage of is recruiting legal minors (often members of street gangs) to conduct commissioned theft. The entire thrust of Canada’s youth justice system is to avoid incarcerating young people in secure facilities in favour of encouraging their rehabilitation within—and reintegration into—the community. In other words, young car thieves stand to earn healthy payments from organized crime syndicates while risking little custody time.

When the thieves are adults, delays pending trial mean suspects are likely to be released on bail for months on end with a level of supervision stretched thin to the point of near nonexistence. Canada’s bail system over the last three decades has become extraordinarily risk-averse, to the point that the great majority of people across the country currently held in provincial prisons—upwards of 80 percent in Ontario—are awaiting trial. This leaves little room to hold many further suspects on remand.

If we are failing to prevent the high volume of crime many argue is committed by a small number of repeat offenders, it follows that we must be holding far too many of the wrong types of accused offenders. Given that car theft is increasingly a repeat offence tied to home invasion and violence, we need to make some remand space for these accused in our prisons by returning to our historical practice of releasing less risky offenders on bail. Or we could entirely divert less serious cases to alternative measures, including restorative justice.  

Prime Minister Justin Trudeau speaks with Toronto Chief of Police Myron Demkiw before the National Summit on Combatting Auto Theft, Thursday, February 8, 2024, in Ottawa. Adrian Wyld/The Canadian Press.

Some promising moves have been made. However, because they are piecemeal, they fail to address the capacity of the range of security and criminal justice agencies needed to work together. The Trudeau government recently made car theft the focal point of its winter retreat, signalling that harsher penalties are coming in the Criminal Code. They also promised to make hundreds of millions of dollars available to provinces to support combating the problem (along with gun and gang violence). In Ontario, the Ford government has supported the efforts of police organizations to create special task forces and partnerships. There have been reports of some successes.

Bolder action involving evidence-driven decisions about which crimes should be prioritised for processing through a prosecution and corrections system with a finite capacity would be reassuring to citizens 

Public education about the sophistication of organized crime would be beneficial. People need to know that this spike in auto theft may be a shorter-term problem, requiring temporarily focused policing and policy responses, until the market for newer model used cars begins to normalise.

Giving citizens the idea they are on their own, however, is a dangerous message that Canadians are getting used to hearing in an increasingly disorderly post-pandemic world. Economic, ecological, and geopolitical turmoil have fuelled extraordinary opportunities for organized crime to make profits and for hostile ideological opponent states and other groups to fan instability and fear in Western democracies. To the public’s eye, the police seem incapable of managing the fallout, whether it is addressing opportunistic spikes in property crime, increasingly well-resourced and confrontational mass protests, or corruption where domestic political representatives are compromised by foreign interference. This then fuels a resigned public acceptance of an increasingly feudal world order, where frightened citizens bunker down to ride out the seemingly endless uncertainty. 

The dark but inevitable endpoint of downloading responsibility for crime prevention and personal safety upon citizens can be seen in places like South Africa and Brazil. In Canada, homeowners are now being given door stops by police to prevent door kick break-ins and are being told it’s on them to invest in alarm systems and security cameras. In South Africa and Brazil, residents with any resources to protect themselves now live in homes hidden behind high walls topped with razor wire, equipped with panic buttons and guarded by heavily armed private security meant to deter home invaders.

Canada must reverse this dark trend. We need to give people hope that the state has what it takes to secure our more courageous forays into open public and commercial life. It all starts with effective policing and community safety.