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Judges, not child pornographers, are the real Tory targets—A Commentary by Adam Goldenberg ’14

The following commentary was published in The Globe and Mail on February 22, 2012.

Judges, not child pornographers, are the real Tory targets
By Adam Goldenberg ’14

Public Safety Minister Vic Toews and Justice Minister Rob Nicholson unveil Internet surveillance legislation at Ottawa's police headquarters on Feb. 14, 2012. -Fred Chartrand/The Canadian Press

Apparently, we really do need to #TellVicEverything.

“This is the first time that I am hearing this somehow extends ordinary police emergency powers,” the Public Safety Minister said Saturday, a full five days after he introduced the government’s controversial online-surveillance bill in Parliament. “In my opinion, it does not.”

In fact, it does. Mr. Toews’s tardy confusion makes a mockery of his bluster; when he told the House of Commons the choice was between the Tories and “the child pornographers,” he did not actually know what he was proposing.

But though the minister’s lack of grace launched a thousand quips, his rhetoric also obscured the most troubling aspect of the new law: its assault on judicial discretion. The online surveillance bill is the latest front in the Conservative government’s war on judges – a twilight struggle that the Canadian public seems destined to lose.

True, police can already access vast quantities of private information about our online activities – but they must first ask a judge for a warrant to do so. Under the new law, they would no longer need permission. The Conservatives apparently see judges as an obstacle to effective police work; the purpose of the proposed legislation is to get them out of the way.

This is part of a pattern. Within months of the 2006 election, the government introduced legislation to limit judges’ use of conditional sentences and impose mandatory minimums for gun crimes. More mandatory minimums followed in the Tackling Violent Crime Act, in 2008. In early 2011, Parliament abolished the “faint-hope clause,” which had allowed judges and juries to review and, if appropriate, reduce parole ineligibility for inmates serving life sentences. And last fall, the Tories tabled an omnibus crime bill that would, among other things, force judges to send people to prison for no less than six months for possessing as few as six marijuana plants.

Anyone who has dared to question these measures has been branded as “soft on crime.” But last week, the spin stopped working. The online-surveillance bill does not just put criminals in Conservative crosshairs – anyone with an Internet connection is now a target. And so, when Vic Toews asked Canadians to choose between the Conservatives and child porn, we chose the latter.

But behind the backlash is an inconvenient truth: We rarely stand up for civil liberties, except when our own are at stake. The vast majority of us don’t see ourselves as potential criminals, and so the impact of mandatory minimums seems remote, at best. When we are trying to get the bad guys off the streets, the thinking goes, who are judges to stand in the way?

Except that is exactly what judges are supposed to do. Last Monday, for instance, within hours of Toews’s child-porn pronouncement, Madam Justice Anne Molloy of the Ontario Superior Court struck down as unconstitutional one of the mandatory minimum sentences imposed by the Tackling Violent Crime Act of 2008.

The Prime Minister’s reaction was telling: “Canadians believe that the courts have not been tough enough in dealing with gun crime,” he told the House of Commons on Tuesday. “This government is determined to make sure that we have laws that can deal with serious gun crime.” In other words: laws that keep judges from judging.

But a free society needs judges like Anne Molloy: strong-willed jurists who defy political pressure. They are the ones who step in when our freedom, if not our individual self interest, is at stake. But the Conservative war on judges rejects this basic democratic principle. Instead, the government believes the judiciary should have little leeway in sentencing, and no leeway at all when police want private information about our online activities. All Canadians – not just criminals – will eventually pay the price.

The online-surveillance bill is the symptom, not the sickness. To protect our privacy, we must end the war on judicial discretion. Want to tell Vic Toews everything? Tell him this: Our judges are not standing with child pornographers when they protect our civil liberties.

Adam Goldenberg is a J.D. candidate at Yale Law School. He was chief speechwriter to Michael Ignatieff and served as a senior aide in the McGuinty government.