Law Times

Page 6 July 10, 2017 • law Times www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Context is everything Law Times reports this week on a ruling by the Ontario Court of Ap- peal in R. v. Tinker. The decision reiterates there is no discretion for lower court judg- es to avoid imposing mandatory victim surcharges on offenders, re- gardless of their ability to pay the fines. In the ruling, Ontario Court of Appeal Justice Gladys Pardu con- cludes that "the surcharge is not grossly disproportionate to what would be a proportionate sentence for these offenders." "I accept that it is disproportionate, but I cannot go so far as to conclude that it meets the high standard of being so excessive as to be abhorrent, intolerable or outrageous to Canadians' sense of de- cency," says the ruling. "[T]he frustration of sentencing judges who have balked at the seeming futility of imposing victim fine surcharges that are beyond the means of an offender in the foreseeable future is understandable, but the surcharge regime does not amount to a viola- tion of s. 7 or s. 12 of the Charter." Pardu, in some ways, is right, when it comes to the technical as- pects of the law. Something does not necessarily have to be a Charter violation, however, for it to be morally incorrect in its application in certain cases. Charging offenders mandatory surcharges regardless of their circumstances and removing judicial independence in deter- mining what is appropriate short-circuits an efficient, thoughtful and attuned process. Columnist Susan Delacourt — who chronicles Par- liamentary politics — has described how the federal Liberal govern- ment has a unique chance to reshape power at the top. But tweaking policy — even when potentially unpopular — means reshaping things so those at the bottom benefit as well. The federal Liberals have already promised to make changes regarding mandatory surcharges on offenders. They should be moving faster. Get going, Ottawa. LT ©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . .Catherine Giles Electronic Production Specialist . . . Derek Welford Widespread turnover a Tory dream BY SUSAN DELACOURT N ot long before he won the 2006 election, Stephen Harper talked about how Conservatives' pow- er would be held in check by all the Liberal-laden institutions in Ottawa. A decade later, with Liberals in power, those same institutions — and more — are in the midst of a major changing of the guard. "The reality is that we will have, for some time to come, a Liberal Senate, a Liberal civil service — at least at the se- nior levels where they've been appointed by the Liberals — and courts that have been appointed by the Liberals," Harper told reporters during the 2005 and 2006 election campaign. At the time, some read those remarks as a reassurance to Conservative-wary voters in Canada. Others saw it as a warn- ing of stormy days to come between any new Harper government and all those in- stitutions the prime minister saw as ene- my territory. They might have been both. Harper managed to win a minor- ity government shortly after he uttered those words, ushering in a decade that often saw Conservatives in pitched battle with federal institutions. That famously included a potentially tense standoff with then-governor general Michaëlle Jean during the "coalition crisis" of 2009 and a battle with the Supreme Court of Canada in 2014. Justin Trudeau, on the other hand, arrived in of- fice with far fewer suspicions about the dice being loaded against him, institution-wise. Or if he did, Trudeau didn't share them. This was a prime minister, it was be- lieved, who would not be framing his government as outsiders to power or opponents of the public service, the governor general or the Supreme Court. Yet, it will be under Trudeau that Can- ada sees a huge and widespread turnover at the top of institutional power in Ot- tawa — a sea change that Harper might have only dreamt about a decade ago. By the end of the summer, Canada should have a new governor general, as the term extension for David Johnston expires in September and a replacement could be appointed soon. And, Chief Justice Beverley McLachlin will be gone from the Supreme Court by the end of the year. Meanwhile, the Senate is still transforming, moving clout away from partisans and toward the raft of new "independent senators" being named at arm's length from the Trudeau PMO. Oh, and as it happens, the RCMP needs a new commissioner to replace the outgoing Robert Paulson. Meanwhile, the Liberals are already behind in fill- ing current and imminent vacancies across the board in some of the most senior watchdog jobs in the public service. Once his government gets its hiring act together, Trudeau should soon have new people in the significant positions of chief electoral officer, official languages commissioner, the commissioners for ethics and lobby- ing, as well as a new head of the CBC. Close watchers of politics will note that all of these above positions, at one time or another, were seen as challengers to Harper's authority. Imagine, though, if the fates had collided similarly for Harp- er, allowing him to replace all those who were in a position to judge him, his min- isters or how the Conservatives were gov- erning. You can almost guarantee that Harper would have faced accusations that he was trying to remake Canada in a more Conservative image — painting a big swath of blue across the red-and- white f lag. However, it's now Trudeau's turn to install people in the top jobs all across the board in Canada. Even if this prime min- ister does only serve one term, many of Trudeau's appointees for those jobs will linger well past the 2019 election. Governors general, for instance, are usually installed at Rideau Hall for four years or longer. McLachlin has been the chief justice for nearly 20 years. Conservatives, ironically, may see this massive changing of the guard in Cana- da as business as usual in the long view of this country's political history. Once again, Liberals are presiding over ap- pointments all over official Ottawa, en- suring a Liberal bent to how the country is run. Who knows? In the near or more distant future, yet another Conservative leader may reassure (or warn) Canadians that Ottawa is run by friends of Trudeau. Certainly, that hiring power is in the prime minister's hands, in a large way, this year. LT uSusan Delacourt is an Ottawa-based political author and columnist who has been working on Parliament Hill for nearly 30 years. She is a frequent political panellist on national television and author of four books. She can be reached at sdelacourt@bell.net. The Hill Susan Delacourt Susan Delacourt

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