John Marshall

I’ve increasingly come to worry about the rise of “judicial nihilism” (for lack of a better term) in Canada. We have a justice system that spends enormous energy considering the personal circumstances of offenders, their rights, identities, mental health, and prospects for rehabilitation. Yet it seems unconcerned with the victims whose lives have been destroyed, or the public that must live with the consequences when dangerous individuals repeatedly reoffend. I think we need to take judicial reform more seriously, rather than dismissing concerns about overreach and malfeasance as conservative fearmongering. The more I look at recent cases (many highlighted by @sarkonakj) the more concerned I become that our institutions are losing sight of some basic moral values in justice. I’ve been thinking about the principles that should guide us to a more liberal, rules-based approach to criminal justice (I’ll admit that this is hardly new thinking, but I can’t remember the last time I’ve seen them laid out): 1. Justice should begin with victims, whose suffering should never become secondary to the circumstances of offenders. 2. Protecting the public from dangerous individuals must be a central responsibility of sentencing, and we should lean towards caution. 3. Punishment must be a meaningful deterrent and reflect the gravity of crimes. Some crimes warrant permanent imprisonment (if not capital punishment). Some crimes are so heinous that the mere prospect of rehabilitation should not be considered. 4. Repeat offenders should face dramatically greater consequences, including long-term incarceration or asylum to protect society. Nobody with dozens of separate criminal convictions should be roaming freely. 5. Mental illness should determine treatment and facility type, not reduce punishment. The bar for criminal non-responsibility should also be much higher than it is today. 6. Sentencing must apply to those convicted equally, based on actions and responsibility, not race, religion, cultural identity, immigration status etc. The rule of law should be non-discriminatory, the right time to address the “root causes” of crime and pursue social justice is before crime is committed. 7. Parliament needs to figure out how to reclaim its authority, with courts exercising much greater restraint in constitutional interpretations. 8. Judicial “independence” must be balanced with meaningful accountability for serious failures and overreach. The judiciary is not supreme to legislature. I worry that too many political leaders have become uncomfortable defending the very concepts of order, punishment and personal responsibility, as though doing so is somehow incompatible with liberal moral values. They aren’t. A liberal democracy has two fundamental obligations. To protect people from the arbitrary exercise of government power, and to protect them from the violence and predation of others. We cannot fulfill one by neglecting the other. They are together the necessary preconditions for liberty. When the public sees rulings that seem fundamentally disconnected from shared expectations of right and wrong, it erodes trust in the system. Order and public safety are necessary conditions for freedom. The freedom to walk down the street, take public transit, operate a business or simply live peacefully in your own home means little if the government cannot protect you from disorder, violence and criminality. It’s often those with the fewest resources who suffer most when that protection fails. If we want Canadians to have faith in the rule of law, they need to believe that it applies equally, that serious wrongdoing carries serious consequences, that dangerous people will not repeatedly be allowed to victimize others, and that the system will not be careless with the lives and suffering of victims.