In Canada judicial activism continues to grow making the Supreme Court ever more powerful. This has far-reaching implications that affect the lives of everyday Canadians. In fact, some momentous legal decisions are actually contributing to an increase in crime. According to Statistics Canada, violent crime increased five percent year over year from 2020 to 2021, with 25,500 more criminal code incidents reported. Murders reached 788, up 29 from 2020 and the national homicide rate increased for the third consecutive year, by three to 2.06 homicides for every 100,000 people..What's happened? Historically, the Supreme Court of Canada has been reluctant to overrule Parliament or try to change the status quo. But during the past 10 years, the top court has become increasingly activist. So far, voters have been unconcerned: Indeed, surveys indicate that across the political spectrum, Canadians trust the top court more than any other Canadian institution. Perhaps the constant barrage of mass shootings and violent crime reported south of the border has created a countrywide smugness, that the Great White North is different and unlikely to become the wild west. Meanwhile since 1982, Liberals and Conservatives remain at loggerheads on how to interpret the Charter of Rights. Liberals argue the Charter is a living tree that must change with the times whereas Conservatives believe in the original text of the Constitution and that it should be interpreted without the judge’s personal bias..Samuel Bachand, a lawyer at the Justice Centre for Constitutional Freedoms, thinks the living tree interpretation of the Charter has gone too far and has started to wreck the foundation of the houses in the neighbourhood. "Judicial supremacy is transforming the country and it is most evident in the commission of a crime and how cases are adjudicated..In the 2017 case R v Antic, the court established that unconditional pre-trail release should be the default position of the Canadian justice system. "Release is favoured at the earliest reasonable opportunity and on the least onerous grounds,” the court ruled. This has led to a catch-and-release program with offenders detained for a few hours before receiving bail..A prime example of catch and release gone too far involves a Vancouver man, Mohammed Majidpour, who allegedly committed a racist attack against an Asian teenager in September 2022. Majidpour was put in jail for a couple of days, freed, and was arrested several more times waiting for trial. One time he tried robbing a clothing store just two hours and 18 minutes after his release. In response even B.C Attorney General Murray Rankin, hardly a hardline Conservative, announced changes intended to deny bail to repeat offenders and laid part of the blame on the Supreme Court. “Supreme Court decisions have made it more difficult to hold violent offenders in custody while they are awaiting trial,” Rankin said..Canadians have not caught up with the new reality. They still believe court cases are decided by the facts and nothing but the facts..Well, not quite. The Supreme Court of Canada endorses the practice of lawyers using hypothetical cases with a made-up crime scenario and an imaginary accused to help decide a case. For example, in the R v Nur case, the Supreme Court decided that the imposition of mandatory minimum sentences against gun criminals represented “cruel and unusual punishment,” by employing a hypothetical scenario that had nothing to do with the real facts of the case. Nineteen-year-old Hussein Nur was caught with a loaded handgun while allegedly going after a rival in the Toronto area: He was convicted of possessing an illegal firearm and sentenced to a three-year minimum sentence. The court did not strike down the sentence based on the facts of the case but the Nur decision was based entirely on a hypothetical scenario in which a Crown prosecutor tried to get a three-year prison sentence for a gun owner whose crime was forgetting to renew their license. Irrespective that the scenario was a pure fantasy that never occurred, the fact that it could happen was enough ground for the Court to strike mandatory minimum sentences from the criminal code because, the court reasoned, they were a grossly disproportionate application of justice. According to Bachand, hypothetical constructs have a role in the courts but can be abused when social science is introduced in criminal cases by left-leaning professors that amount to social engineering as the courts do not have the proper tools, time, and resources to properly evaluate what is being considered..Another example: In May the Supreme Court of Canada put a scythe to any kind of tough punishment for the most heinous crimes committed, by ending the punishment of life without parole for multiple murders. The case involved Alexandre Bissonnette who killed six Muslim worshippers in a Quebec City mosque in 2017. The court’s decision placed a strong commitment to rehabilitation and pronounced that life without parole is a punishment so extreme that it must be “expunged from the justice system.” The decision is retroactive to 2011 and has lawyers for hardened criminals lining up to receive potential sentence reductions. Two such examples include John Paul Ostamas who was sentenced to life in prison with no parole eligibility for 75 years after he beat three homeless men to death in Winnipeg; the second case is Travis Baumgartner who at 21 shot dead three fellow armoured car co-workers in a robbery..The days of Stephen Harper’s Conservative government tough on crime agenda where first-degree murder brought an automatic sentence of life in prison with a first chance at parole only after 25 years are done. A new era of soft-on crime laws is in the books. Along with an activist Supreme Court, the federal Liberals have passed laws to get rid of minimum penalties for drug offences and some gun-related crimes and give greater authority to judges to consider additional facts to a case including the Liberal government’s obsession with systemic racism, that has introduced identity politics in how judges hand out punishments. The legislation will allow more use of house arrest, counselling and electronic monitoring devices that ensures less prison time..Canadians are fearful of crime. In 2011, a Canadian was murdered every 11 hours. Drug use and homelessness are increasing and an activist court is emphasizing the rehabilitation of offenders while the victims of crimes, their families, and the immense trauma caused by losing a loved one are taking a back seat to the issuance of new rights for the accused. The elimination of life sentences forces victims to relive their tragedies over and over again and to question if justice has been served..According to an Ipsos- Reid poll a majority of Canadians favour Parliament making laws, not judges. But as Canada continues to grow and evolve as a country it must find a way to make judicial activism accountable..Otherwise unelected appointed judges, who can remain in office until 75, will become the most powerful people in the land and render Parliament irrelevant….Toronto-based Francis Crescia is a freelance writer
