It has been apparent for some time that the government of Stephen Harper might benefit from a little help in making law.
The prime minister’s hell-for-leather approach has opposition parliamentarians upset and other people brandishing rude signs, marching in the streets and threatening blockades — as some First Nations and friends of the environment are today.
Harperlaw has also, from time to time, been found wanting by the courts – notably legislating mandatory minimum sentences for gun-related crimes which the Ontario Superior Court has found “cruel” and “disproportionate” and therefore a violation of the Charter of Rights.
The death earlier this month of Francis Muldoon, the judge who was president of the Law Reform Commission of Canada in the late 1970s and early ’80s, reminded me that the commission, too, is dead. It was killed, as the Law Commission, by the Harper government in 2006.
Its function was to recommend ways to “modernize” and “improve” federal laws and delete others. It was independent of the government and its bureaucracies, and used the experience of judges, lawyers and academics to conduct what were called “philosophical” inquiries into legal issues affecting society.
The Mulroney government disbanded it in 1993, but had the grace to say it was because of the need for fiscal restraint. It was revived in 1997 by the Liberals.
The Harper government’s reason for killing it was less subtle. John Baird as Treasury Board president said its work wasn’t “meeting the priorities of Canadians.” He suggested that the government wasn’t interested in funding an organization that had the effrontery to criticize the government’s legislation.
This government has exhibited, especially since it obtained a majority in Parliament, a pretty unsubtle grasp of complicated legal issues. It has shown a fondness for less-discriminating blunt weapons over more-precise sharp ones.
There was a report last week that Justice Department lawyers drafting legislation are, one of them has alleged, under instructions to play scant heed to the risk that the laws may violate Charter rights. The inference I take is that Harperlaw, such as “reforms” affecting immigrants and sentencing, is designed more for politics than legality — for show more than for effect.
Lawyers and judges, like police, see the how laws affect society — its miscreants and victims and those caught between. Legal drafters in government cubicles and politicians on Parliament Hill don’t.
Laws are drafted to meet political and legislative deadlines. Politicians don’t have the time or leisure to consider whether the laws they propose go too far or not far enough, or examine closely the societal issues that the law in general is expected to address.
Law-reform bodies exist to offer help to most of our provincial governments. The government in Ottawa today thinks it needs no help. The courts are telling it otherwise. So are people in the streets.
One report commissioned by the federal body before it was disbanded called for a greater recognition of indigenous legal traditions. Shouldn’t that at least be debated today as a way to improve the testiness of the relationship between many aboriginals and many other Canadians?
Other studies abandoned in 2006 included age-based law, legal and policy barriers facing prospective immigrants, and policing and security — a favourite topic around the cabinet table, apparently.
Surely it’s about time someone took a hard look at this when the public mood seems to tolerate so much that the law now declares a crime.
People are softer, today, on pot, prostitution and abortion than they used to be, and our lawmakers can’t keep up.
So people found in the vicinity of six marijuana plants are lumped in with those wallowing in the stuff.
Debating this isn’t “the priority of Canadians” — not for a government that thinks full prisons make safe streets, one sentence fits all and rehabilitating offenders is a waste of time.
The government’s in a hurry — and the devil take the hindmost.
© Copyright 2013