The latest casualty of the trend came Friday, when the Supreme Court of Canada overturned a 2011 Criminal Code change that required sex offenders to be automatically added to the National Sex Offender Registry — a lifetime designation for anyone convicted of two or more sex offenses . In a separate ruling, the court found the law was “overbroad” and cast “too wide a net” because it caught offenders who presented a low risk of reoffending. The decision is just the latest in a long line of court rulings that have overturned Harper-era sentencing reforms. “The legacy of the Harper Sentencing Act has caused years of litigation at extraordinary public expense, but it is slowly but surely being reversed,” Lisa Kerr, a professor of criminal law at Queen’s University, said in an email. Three laws creating mandatory minimum sentences passed by Harper’s Conservative government have now been struck down by the Supreme Court, and another 25 have been struck down in various provinces and territories, according to research by Toronto-based lawyer Matthew Oleinik. Overall, the rulings suggest Canadian courts are likely to reject future attempts by lawmakers to limit judges’ sentencing discretion or impose blanket approaches to punishment, several criminal and constitutional law experts told the CBC.
“One size fits all” approach.
Many of the Harper-era criminal law reforms were contained in three key pieces of legislation: the Safe Streets and Communities Act of 2012, the Protecting Communities and Exploited Persons Act of 2014, and the Tougher Penalties for Child Predators Act of 2015 . These acts, among other things, introduced mandatory minimum sentences and otherwise enhanced punishment for a range of criminal offences. The Supreme Court of Canada overturned a 2011 change to the Criminal Code that required sex offenders to be automatically added to the National Sex Offender Registry. (The Canadian Press) Eric Gottardi, a Vancouver-based lawyer and defense attorney, said “law and order” policies remain popular with voters — despite research from Canada and the United States that suggests longer jail terms and tougher sentences do little to reduce the crime. Gottardi said he testified at committee hearings during Harper’s tenure to warn lawmakers that the bills could be unconstitutional. “The previous government just tried to paint whole classes of people with a broad brush,” Gottardi said. “Justice doesn’t have to be a one-size-fits-all approach.” Carissima Mathen, a professor of constitutional and criminal law at the University of Ottawa, said the general sentencing rules are “often a very crude tool.” But mandatory minimum sentences were consistent with the government’s “tough on crime” messaging at the time, University of Guelph political science professor Kate Pundister said in an email.
“Critical change in the law”
Conservative justice critic Rob Moore challenged the Supreme Court’s latest decision. Because of the decision, he said, many people convicted of sex offenses will be excluded from the registry. He said the original legislation had bipartisan support when it was passed. “This is a critical change in the law and it disproportionately affects women and children. It should be taken very seriously,” Moore said in an emailed statement. Other Harper-era crime laws may soon face challenges. The Supreme Court will rule on Friday in a case testing the constitutionality of a law that prevented a judge from allowing a young Indigenous woman to avoid prison by serving a suspended sentence. And Prime Minister Justin Trudeau’s government is also pushing back against Harper-era sentencing changes. Legislation is before the Senate that would eliminate mandatory minimum sentences for 14 firearms and tobacco-related offenses and six drug offenses. “Any mandatory minimum sentence is on a difficult footing,” Gottardi said.
