02/14/2012 10:43 EST | Updated 04/15/2012 05:12 EDT

Omnibus Crime Bill: Court Ruling Blasts Mandatory Minimums But Fails To Draw Conservative Ire

OTTAWA - A Conservative government with long history of rhetorical explosions over activist judges is keeping its powder dry in the face of a court judgment that delivered a scathing broadside to mandatory minimum sentences.

An Ontario Superior Court judge ruled this week that sending a first-time offender to prison for three years for possessing a loaded, illegal gun is "cruel and unusual punishment."

Prime Minister Stephen Harper told the House of Commons on Tuesday that the mandatory minimum sentence in question became law in 2008 with the support of Liberal and New Democrat MPs.

"I think Canadians believe the courts have not been tough enough in dealing with gun crime and this government is determined to make sure we have laws that can deal with serious gun crime," Harper added.

With a whole new group of mandatory minimum drug and sex sentences currently awaiting passage by the Conservative-dominated Senate under the government's omnibus crime bill, the legal and constitutional battle may be just beginning.

Judge Anne Molloy ruled Monday that reasonable people support reducing violent crime, but there is no "tangible evidence" that mandatory minimums accomplish the goal. And she called the specific three-year minimum sentence "fundamentally unfair, outrageous, abhorrent and intolerable" in the specific case of a "very foolish" poser, Leroy Smickle of Toronto.

Toronto lawyer Paul Calarco, a spokesman for the Canadian Bar Association, said the ruling, while not binding on other courts at this point, is significant.

"It has the potential to be extremely important," Calarco said in an interview.

The ruling is certain to be appealed, said Calarco, and once the Ontario Court of Appeal weighs in the finding will be the law of Ontario. "I have no doubt it will wind up before the Supreme Court (of Canada)."

In the meantime, said the lawyer, Malloy's ruling will "encourage people to bring additional challenges to the mandatory minimums based on this decision itself."

Justice Minister Rob Nicholson suggested that it's up to Ontario to appeal the ruling although, he added, "I'll look at this very carefully."

He noted there are about 40 mandatory minimum sentences already in the Criminal Code.

"We're confident that the legislation that we've put forward — and we continue to put forward — will meet any challenges," said Nicholson.

Ontario Premier Dalton McGuinty also waded in, reiterating his support for mandatory minimums for all gun offences.

"The message that we're sending to all Ontarians is that we treat gun crimes very seriously here," McGuinty said Tuesday in Toronto.

But fellow Liberal Bob Rae, the federal party's interim leader, blasted the Conservatives for what he called the "indiscriminate use of mandatory minimums."

"They are creating a situation where the judges will have no choice but to be consistently asking the question. 'Is this particular sentence compatible with the Charter of Rights and Freedoms?'"

It's a question that has driven Conservatives to distraction in the past.

As far back as 2000, Harper was railing against "prejudicial bias" on the part of the Supreme Court after he lost a case on third-party advertising during elections.

"To heck with the courts," backbencher Randy White famously said during the 2004 campaign, a pronouncement on overturning same-sex marriage that may have cost the Conservatives the election.

In a 2003 interview with an American organization, Vic Toews — now Harper's minister of public safety — complained about "these radical liberal judges who have their own social agenda coming to the bench and forgetting that their responsibility is to interpret the law and not to make law."

During the 2006 election campaign, Harper got into trouble when he suggested a Conservative majority would not have "absolute power" due to Liberal sympathizers on the courts, in the Senate and in the civil service.

In December 2010, Julian Fantino — now a junior Conservative cabinet minister — told an interviewer that "the interpretation of the Charter as has happened in many cases has, in fact, provided a great advantage for criminals."

And last February, Immigration Minister Jason Kenney delivered a speech in London, Ont., where he suggested "intrusive and heavy-handed" Federal Court judges were getting in the way of deportations of failed refugee and immigrant cases.

That speech prompted a blazing retort from the Canadian Bar Association, which in turn was followed by another spanking by no less than the chief justice of the Supreme Court of Canada.

"I was certainly — and I think all judges were — very pleased when an issue arose earlier this year when a minister of the Crown seemed to suggest that some judges were insufficiently solicitous to government policy," Beverley McLachlin told the CBA in a speech last August.

"We were very, very gratified to see your president writing a powerful public letter to the minister in question, reminding the minister of the importance of public confidence in an impartial judiciary, that bases its decisions on the law and not on government policy."

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