Most journalists writing about Toews focus on his support for “tough-on-crime” policies as a source of opprobrium. However, this is not what made Vic Toews provocative. Many Canadians held similar views to his. Criminologists were already questioning the social engineering penology practices of the 1970s and, after the Jane Creba shooting in downtown Toronto, then-Ontario Liberal premier Dalton McGuinty and NDP-leaning Toronto Mayor David Miller both publically supported Toews’ bill to make it harder for persons accused of gun-related crimes to get bail.
With this sort of bipartisan support for tough-on-crime policies, on the federal level it was no wonder that for all of the federal opposition party talk, opposition platforms contained planks that differed little from the Conservative Party. In 2011, then-NDP leader Jack Layton called for the hire of 2,500 more police officers and a new law making criminal gang recruitment illegal. In that same election year, Liberal Michael Ignatieff promised to review crime legislation he and his party had already approved in the House of Commons. Toews was not alone in expressing tough-on-crime views.
Rather, what made Vic Toews provocative as a lawman was that his perspective never wavered from that of the prosecutor he had been for the first 18 years of his professional career after being called to the bar in 1977. As a Crown, no person understood more than he that crime poses a threat to civil society. But as a Crown, no person misunderstood more than he that an unbridled state poses that same danger.
Take, for example, his now-infamous comment to his Liberal counterpart, Francis Scarpaleggia, that Scarpalleggia “can either stand with us or with the child pornographers” when the fellow member of Parliament questioned the constitutionality of bill 30’s invasive privacy requirement that Internet service providers and cellphone companies hand over basic subscriber information of customers to the police.
Clearly Toews saw issues of protection of the public as his own personal duty, reminiscent of Louis XIV’s “L’etat c’est moi.” He was no longer simply being tough on crime when he scolded his Liberal colleague, he was engaging in a prosecutorial peroration to the jury. The government backed off the legislation seeing what he could not see: Canadians wanted protection from crime but they also wanted to be protected from state intrusion — quite a conservative idea really first voiced by Edmund Burke.
Toews’ difficult relationship with the judiciary was also indicative of his inability to serve both ends. At the 1999 Alberta Summit on Justice, he launched into a tirade on judicial activism favouring accused persons. This was all while he was still Manitoba’s minister of Justice, attorney general, and keeper of the Great Seal, with further responsibilities for constitutional affairs.
It is understandable he scored points with the public on these issues when he was in opposition as the Justice critic for the Alliance Party from 2001 to 2005, but when you are your province’s top lawmaker, you would think you would understand it is not the role of the executive to suggest the judiciary better represent the prosecutorial perspective.
If there is a body in our polity whose fundamental role is to protect the people from the threats of crime as well as the state, then surely that body is the judiciary, and one would expect our country’s top lawmaker would protect that fundamental role, not threaten it. But shortly after the federal 2006 election, when he became minister of Justice, Toews announced police representatives would be appointed to the provincial judiciary advisory committees that review the qualifications of potential judges. Judges review police conduct every day but now he was asking the police to review judges.
He was turning the natural order of the judicial system on its head. Even Liberal AG for Ontario, Michael Bryant, saw this move as nothing more than “populism.”
Since Toews started practising criminal law before the Charter of Rights and Freedoms was enacted, when accused persons had few if no rights, it is understandable why his prosecutorial eyes viewed the Charter as a hindrance to protecting the public against crime. At one time he sourced the Charter as the font of “Constitutional experimentation.”
To be fair, however, he mellowed on the Charter when he spoke favourably about it at a 2002 conference celebrating its 20th anniversary; and, as minister of Justice in late October 2006, he accepted an Ontario Superior Court judge’s decision to strike down a part of Canada’s Security of Information Act as unconstitutional.
Prior to taking office as minister of Justice, he expressed the opinion the public ought to know the beliefs of potential judges prior to their appointment. Under Toews, the Commons convened a somewhat U.S.-style appointment process for now-Supreme Court of Canada Justice Marshall Rothstein. Many feared the politicization of the SCC appointments. Rothstein, a brilliant jurist at the Federal Court, charmed the committee and put criticism to rest that Toews was stacking the court with right-wing ideologues.
It was the first and last time such a hearing has taken place. Ironically, Toews subverted his own future on the bench by associating himself so publicly and so often with one-sided prosecutorial views that it would look unseemly to elevate him.
Toews was moved out of the Justice portfolio nine months after assuming it and became Treasury Board president for three years until he was moved again into Public Safety where he remained until his resignation. It was in Public Safety that he had the most to contribute to public life as it was with this portfolio he had full rein to defend the public from crime and assume again the role of his prosecutorial years.
Sam Goldstein practises criminal trial and appellate law in Toronto. He will be arguing the Fearon case before the Supreme Court of Canada.