Interesting rebuff of Harper by Supreme Court

By Patrick Hunter Wednesday March 26 2014 in Opinion
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In the grand scheme of life, two “slap-downs” of Prime Minister Stephen Harper by the Supreme Court of Canada (SCC) may amount to be a grain of sand on a very long beach. But, sometimes it is nice to celebrate the small things.


Two rulings by the SCC this past week effectively told Harper that he cannot have his way all the time. In the first, it declared a provision in the Abolition of the Early Parole Act unconstitutional. In the second, it told the Prime Minister that his choice of a representative for Quebec on the Bench was ineligible. So, back to the drawing board.


Let me deal with the second, first. Harper selected Marc Nadon, a member of the Federal Court, to take up one of the vacant seats constitutionally reserved for Quebec. Nadon was ruled ineligible because he was not a sitting member of the Quebec bar or member of the one of the senior courts in Quebec. In other words, my reading of this is like me wanting to sit on the Supreme Court in Jamaica, having been away from that country for so long. Of course, not being a lawyer would also have a huge influence in that regard.


One effect of this “mess-up” – strictly a failure of the Prime Minister’s vetting process – leaves the Court without full representation from Quebec. That may hamper any hearing by the Court on matters relating to Quebec. We will have to see how that plays out.


The first “slap-down” I view as a part of the Harper government’s attempt to inflict its interpretation of “being tough on crime” on all of us. It is of particular interest because of the large numbers of Blacks and Aboriginals in Canada’s penitentiaries.


The Abolition of the Early Parole Act was brought in ostensibly to delay the eligibility for parole of “first-time, non-violent offenders”. It changes that eligibility for day parole from one-sixth or six weeks of serving their sentence to making that eligibility “six months before the full eligibility parole date”.


While that part of change may go ahead, what brought the slap-down was that the Harper Government wanted to make it retroactive – that is, it would be applied to those who are already serving a sentence, rather than those sentenced after the coming into force of the Act.


The Court’s concern is that, in effect, it constitutes punishment again. “[Section 11] Paragraph (h) [of the Charter of Rights and Freedoms] then provides that this person has the right, if found guilty and punished for the offence, not to be tried or punished for it again.”


Statistics Canada published some numbers that are worth bearing in mind.


“Most crimes committed by adults admitted to provincial and territorial sentenced custody in 2010/2011 were non-violent” – property offence, impaired driving, drug offences.


Last year, the federal correctional investigator, Howard Sapers, reported that 9.5 per cent of federal inmates “today are Black (an increase of 80 per cent since 2003/04). Aboriginal people represent a staggering 23 per cent of federal inmates.”


The federal investigator goes on to say: “Taken as a whole, visible minority inmates often have better correctional outcomes when compared to the total offender population.” In other words, they are less likely to re-offend.


These are some of the reasons why the SCC ruling is, at least, encouraging. Those who are currently in the system and eligible for early parole may have an opportunity to be released at the time they may be looking forward to, to begin turning their lives around.


As I noted in an earlier column on the subject of the investigator’s report on conditions for Blacks and Aboriginals in correctional institutions, what they face is no picnic. The investigator found that they are more likely to end up in segregation and maximum security. They are also more likely to “incur a disproportionate number of institutional charges, and are more likely to be involved in use of force incidents”.


I cannot say for sure, but one cannot help but imagine that much of the latter stems from name-calling or other racial harassment. And that may not be limited to other inmates. As Sapers reported then, “…discriminatory behaviour and prejudicial attitudes by some CSC [Correctional Service of Canada] staff were reported as common experiences among many Black inmates”.


So, it may not be an earth shattering win, but it hopefully prevents an additional burden to inmates exiting the system. Let’s face it, a Black person having a criminal record is a considerable additional burden.


As for Prime Minister Harper, Senate scandals, mini-rebellions in caucus, resignation of his long-time finance minister, gagging of scientists, unusual foreign policy directions – quite of list of curious behaviours which will help determine his fate in the next election.

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