Stoking political outrage over court decision ‘irresponsible’

Legal experts are calling out politicians’ “irresponsible” reaction to a recent Supreme Court decision that did away with mandatory minimums for child pornography as an attempt to stoke outrage.

The Court was clear that a jail sentence is necessary for the vast majority of child pornography offenders, who should expect to receive fairly harsh sentences. However, it found that there are scenarios where the mandatory minimum is completely inappropriate. Among them? A situation where an 18-year-old receives an explicit photo or video of a friend's 17-year-old girlfriend, something the Court noted “is not uncommon” in today’s digital age.

Writing for the majority, Justice Mary Moreau said a case like that falls on the low end of the gravity scale among crimes related to the possession of child pornography. In light of that, giving the 18-year-old the one-year mandatory minimum sentence would constitute a grossly disproportionate sentence.

That nuance, however, was missing from the political outcry, which suggested judges would be more lenient on offenders across the board.

Manitoba Premier Wab Kinew called the ruling “disgusting” and said offenders should be buried underneath prisons.

"Child sexual abuse images and video, this is like one of the worst things that anyone can do,” he told reporters Monday.

"Not only should [you] go to prison for a long time, they should bury you under the prison. You shouldn't get protective custody. They should put you into general population, if you know what I mean.”

Measured language matters

In a statement, CBA President Bianca Kratt acknowledged that emotions can run high following court decisions that attract public attention, but stressed that’s precisely the time when measured language from political leaders matters most.

“Disagreement with a court's ruling is legitimate in a democracy, but political leaders have a responsibility to express their disagreement in ways that maintain public confidence in our legal institutions.”

While debate about sentencing and justice policy is healthy, she said it must never cross over into calls for consequences beyond what the law provides. 

“Calls for punishment outside the legal system undermine the rule of law, which protects all of us.”

Kinew, who told reporters he doesn’t think the ruling makes sense to the average person, wasn’t alone in his criticism.

Ontario Premier Doug Ford called on the federal government to invoke the notwithstanding clause to override the decision.

"These people are predators. Disgusting scumbags who prey on children belong behind bars for the rest of their miserable lives," he said on social media. 

Calling the majority decision "outrageous,” Alberta Premier Danielle Smith echoed the call to invoke section 33 of the Charter of Rights and Freedoms. 

“The possession of child pornography is a heinous crime, and even a one-year minimum sentence is already far too lenient,” she wrote on social media.

Federal Conservative Leader Pierre Poilievre also immediately called for the nuclear option, insisting if he were elected to government, he’d use the notwithstanding clause to overturn the ruling — a move Justice Minister Sean Fraser has dismissed.

“We don’t intend to override the Constitution to fix the problem,” the minister told reporters. 

“There’s other solutions that are apparent to us, and we’re doing the policy exercise to find the right path right now to protect our kids.” 

‘Ugly, divisive politics’ 

Asked if he thought any of the leaders read the decision before criticizing it publicly, Emmett Macfarlane, a political science professor and constitutional expert at the University of Waterloo, says, “I highly doubt it.”

“Certainly from their comments, there's no apparent suggestion that they bothered to read the decision, because if they had and they weren't simply seeking to stoke outrage, they would see that it doesn't really constrain Parliament at all from bringing in increased penalties for accessing or possessing child porn.”

Macfarlane says the decision is quite narrow about existing mandatory minimums that apply, and the fact that they are overbroad because they could be applied in scenarios where it would be fundamentally unjust. He notes even in the dissenting judgment, there’s nothing to suggest that the majority is being soft on child pornography.

Boris Bytensky, a partner at Bytensky Prutchi Shikhman and president of the Criminal Lawyers’ Association, says anyone who takes the time to read the decision might be shocked to learn there’s actually very little in there that’s inconsistent with the viewpoints being expressed by the politicians. 

“But rather than focus on what the Supreme Court of Canada actually said, the public seems to be receiving commentary based on what the Court actually didn't say,” Bytensky says. 

“It's very disappointing that people are being misled.”

Macfarlane says it makes for “ugly, divisive politics.”

“If we start misrepresenting what the courts are actually deciding, and we turn the courts into this object of ideological or partisan contestation, we really undermine the legitimacy of the courts in the eyes of the public.”

That’s the real concern here. 

Former Alberta Court of Appeal Justice Marina Paperny K.C. says criticism of judgments based on the reasoning or the analysis, and sometimes even the results, is legitimate and an important part of a healthy democracy.

When politicians weigh in, it’s usually intended to capitalize on some political view or agenda item that has been thwarted by judicial interference. 

“I don't think it is ever intended to delegitimize the judiciary, or rarely is it intended to do that,” she says. 

“But it becomes inappropriate when those attacks become personal or they're uninformed, because they undermine people's confidence in the judiciary and the administration of justice.”

She’s encouraged that people are speaking out against what’s unfolded because no one sitting on a court bench can. 

“The judiciary doesn't have a voice in this.”

Kratt emphasized that Canada’s democracy rests on a clear distinction between political questions, which are resolved through democratic processes, and legal questions, which are resolved by independent courts. 

“When that boundary is blurred, history shows that societies become less fair, less stable, and less secure,” she said.

“Respect for the courts is not optional in a democracy; it is what keeps justice alive.”

'A glaring warning sign'

Bytensky says this kind of political outcry has become all too common, and he has little confidence that it will end anytime soon. 

“There seems to be a perception that the political gains from making outrageous statements outweigh any harm that you cause.”

South of the border, the court system has been swarmed by polarization and partisan contestation. Simultaneously, Macfarlane says the political system has fallen to an ugly form of right-wing populism and even authoritarianism. Subjected to so much polarization for so long, the courts are weakened in their ability to stand up for liberal democracy. 

“It would be disastrous to see this come to Canada,” he says. 

“The reaction to this particular case sends up a glaring warning sign for me that some of our politicians really don't care about principled debate or having some propriety around the valid roles of different institutions, particularly the courts.”

In Saskatchewan, Premier Scott Moe also took to social media in response to the decision. 

"If you ever wonder why I am so adamant that elected legislators, not unelected judges, should be the ones making the laws read [this] story," he said, linking to a news article.

While Bytensky agrees Parliament should be primarily responsible for making laws, not the courts, he says legislators conveniently forget that it was legislators who enacted the Charter of Rights and Freedoms — not unelected judges. It was the wish of a prior, duly elected Parliament that decided the courts should have supervisory powers to ensure future legislators could only enact laws that comply with Canada’s constitutional principles.

“I’m not sure why that often gets left out of the discussion. Parliament gave that supervisory role to the courts — the courts didn’t give it to themselves.”