Troy Riddell: No, the notwithstanding clause should not be “off limits” in criminal justice

Section 33 of the Charter should decidedly not be “off limits” in criminal justice, as a Globe and Mail op-ed recently argued.

Critics of Section 33 (the notwithstanding clause) point to cases like the recent prosecution of Umar Zameer, a case involving the unintentional killing of a Toronto police officer, as evidence against the so-called “politicalization” of the courts. Wrongful prosecution or conviction, however, most often results from poor decision-making by police officers, Crown prosecutors, and even judges, rather than how rights are defined. Better training (and repercussions for clearly bad decisions) are more germane to protecting against such injustices than questions of the Canadian constitution itself.

However, to the steelman the other side, maybe under revised criminal justice laws (to which Section 33 is applied), more individuals would be held on bail or sentenced more harshly. Police could also be given more latitude to investigate crime.

How therefore do we balance the rights of individuals versus protecting victims and the community and who should decide that balance? Opponents of Section 33 argue that the accused and offenders are often vulnerable and need protection against the state, particularly when it may be politically advantageous to propose a more limited definition of their legal rights. Unelected judges, according to critics of Section 33, are better positioned to dispassionately assess where lines should be drawn. The same people argue that judges have experience in deciding criminal cases to help guide such decisions.

These arguments, however, overestimate the ability of courts to engage in criminal justice policy analysis and the degree to which judicial decisions are devoid of value choices. Courts hear many individual cases, but they are not able to independently conduct research or systematically track the effects of changes to rules in criminal justice. Nor do judges, despite being highly educated, have special philosophical insights into such questions as to how “human dignity” should apply in criminal justice.

Also, it is not uncommon for Supreme Court judges to themselves be divided on important questions of criminal justice policy. Examples include whether maintaining “confidence in the administration of justice” can be used as a basis to deny bail, whether a mandatory minimum for possession of a loaded gun was “cruel and unusual punishment,” or the circumstances under which police could arrest someone in their dwelling place without a warrant.

Research has shown that whether Supreme Court judges are more ideologically liberal or conservative has an influence on how they make decisions in civil liberties and criminal law cases. Although courts play a valuable role in defining and protecting rights, judges are not oracles who neutrally arrive at some ethically and scientifically optimal balance of the many factors in criminal justice; including the right to be presumed innocent, community protection, police power, civil liberties, victims’ rights, rehabilitation, deterrence, and punishment.

Conversely, the notion that Parliament would trample rights to appease the public, particularly under a Conservative government, is a caricature. Mandatory minimums, including those introduced by the Harper government, have been primarily struck down for violating “hypothetical” applications of the law rather than based on the facts of the case before the courts. There have also been examples of governments reassessing policy in the face of opposition, such as when the Harper government withdrew proposals to allow police access to internet subscriber information without a warrant to investigate crimes such as child pornography.

Furthermore, governments have been more “progressive” than courts in protecting the rights of women in sexual assault cases. Conservative leader Pierre Poilievre has been talking about restricting bail rights for “repeat violent offenders” or not allowing mass murderers the possibility of parole—proposals over which reasonable people can disagree. Unlike courts, parliamentarians can engage in democratic debate about such matters and be held accountable for the choices that they make.

Nevertheless, caution is warranted around Section 33. Parliament does not have a good-track record of meaningfully engaging in rights analysis. Data on which to create good policy, especially in criminal justice, is often lacking. Where good research evidence does exist, governments at times have ignored it, such as by exaggerating the impact of longer sentences and mandatory minimums on public safety (while oddly not emphasizing normative values of punishment).

Section 33 should not be off-limits in criminal justice, but it should be used with careful deliberation and only after a court has declared a law invalid under the Charter.  Such judicial decisions can be valuable in highlighting rights that are at risk by legislation and should be part of the policy conversation.