I am writing this on October 20, 2015. I feel like someone gave me my country back. It seemed throughout the day there was this sense of music in the air, something joyful, tangible, and real. Democracy was unwrapped in Canada.
It did not matter, I suspect, whom one voted for — the result was positive, and although there would be shrugs of disappointment in some homes, a comfort set in and embraced our nation.
For so long we were forced to accept rigidity and be reticent in our inclusiveness and restricted in our vision. In our profession we spent years challenging the breaches of the Charter in an environment that seemed to treat the constitution as an impediment. We helplessly sensed that our justice system was being undermined and misused. Efficiency replaced fairness, the getting there more important than the going.
Judges who found a Charter violation were seen as at war with lawmakers, trying to usurp their roles and overstepping their own. Justice officials in Ottawa were forced to hold their noses and churn out law and order legislation that was inherently flawed, doomed to eventual failure, contributing to the scorched earth of criminal justice.
Our jails filled up, but we drove by and watched tax dollars squandered in new, inhuman, shiny warehouses that were quickly outdated like the newest iPhone.
We in our own way seemed to become frozen in our defence of the system we loved, scrambling every day to just get through it all.
At the core, the absolute centre of the erosion of decency in our country and our justice system was Stephen Harper.
He is a father, a husband, and a human being, who served his country. For that we respect him. But it was his country, not our country that he served.
Never a speech from the heart, a teleprompter was Harper’s constant campaign and shield from accountability. This is the prime minister who cautioned against drugs, implemented unnecessary mandatory minimums for minor drug offences, tried to paint Justin Trudeau as a dangerous pusher, and clouded himself in a “tough on crime” bubble, yet in a most telling revealing strip tease, he embraced Rob and Doug Ford.
Our justice system was never respected, its principles manipulated and misused shamefully in plain sight of all of us. We didn’t seem to be able to stop it.
That’s why I think there was comfort if not joy at the election result throughout our profession. I think we were released from the incarceration of our duty to speak up, inability to exercise discretion, and frustrated at the roadblocks set up in the system for crown counsel, judges, police, and defence counsel.
You may not have voted for Justin Trudeau, but you can be sure he is not going to publically dishonour the chief justice of this country. He is not going to chain gang his justice policy drafters. He is not going to appoint judges that are not qualified. He is not going to ignore the vulnerable in our system by sloganeering. He is not going to try to scare us into accepting the erosion of discretion. He is not going to hide legislative tsunamis in omnibus bills. I suspect he will be accountable. Harper was not — until Monday night.
Was it our fault as lawyers? Did we not do our jobs? I think not. I think we were frustrated in our attempts. We feel good today because we won’t be forced to be compliant again. It has been fascinating to feel that this day was coming.
There have been committees in this country over the last 10 years of judges, lawyers, police, and government policy-makers who have met in collaborative, off-the-record, but successful conferences, working together despite differences of belief and approaches, often firmly held. These groups led by dedicated members of their profession have kept the embers of change glowing, to stop the erosion of our judicial system.
The Steering Committee on Justice Efficiencies and Access to Justice, and the National Symposium on Reinventing Criminal Justice, to name two, have seemed like revolutionary, clandestine meetings with nervous dissemination of ideas for fear of government purges.
I wrote several months ago that this election was about Stephen Harper. I was only half right. This election was about us and reclaiming our nation — a nation of decency and principle.
Our criminal justice system, hijacked by politics, works best when it seeks collaborative answers unfiltered by restrictions on discretion. We owe it to our country to be vigilant so that we never again allow so few to do so much to so many.
Our new government will need positive input into how to undo the “safe streets” and fearful niqab mentality that has led to regressive legislative initiatives.
Nevertheless, “climate” change is possible in the administration of justice. The incoming prime minister says we can do better. I think we knew it all along.
