Crime and punishment: Inside the Tories’ plan to overhaul the justice system
NationalPost.com – Features
May 21, 2011. Kathryn Blaze Carlson
The Conservative government’s omnibus crime legislation, due ‘‘within 100 days,’’ will mark a watershed moment in Canadian legal history, imposing many controversial changes to how police and the courts operate, experts say.
The bill is sweeping in scale and scope: It is expected to usher new mandatory minimum sentences for drug crimes — growing five marijuana plants to sell the drug would automatically bring six months in jail — and for certain sexual offences against children. … It will expand police powers online without court orders, reintroduce controversial aspects of the Anti-Terrorism Act that expired in 2007, end house arrest for serious crimes, and impact young offenders and their privacy.
“This bundle of crime legislation represents the most comprehensive agenda for crime reform since the Criminal Code was introduced,” said Steven Skurka, a Toronto-based criminal defence lawyer.
The omnibus legislation — which is expected to combine upward of a dozen bills, some of which failed to pass Parliament under minority-government rule — is one of Prime Minister Stephen Harper’s top priorities when Parliament resumes June 2. He promised during the election campaign to pass the bill within his government’s first 100 sitting days, and it is likely to whiz through the House of Commons and the Senate now that both are firmly under Tory control.
‘‘We remain unwavering in our commitment to fighting crime and protecting Canadians so that our communities are safe places for people to live, raise their families and do business,’’ said Pamela Stephens, spokesperson for Justice Minister Rob Nicholson. “We will be bringing forward comprehensive tackling-crime legislation to be passed within 100 days. Further details will be announced in due course.”
The Liberals, until recently the Official Opposition, claim crime has fallen in volume and severity in the past few years, and that the legislation simply goes too far. They argued that the United States, with its “mega prisons,” is suffering from the effects of this sort of tough-on-crime legislation.
Among the more controversial aspects of the bundle is mandatory minimum sentences. Minimum sentences are hardly new to the Criminal Code, and they are hardly partisan — the previous Liberal government imposed mandatory minimums on several child-exploitation offences. But the Conservative omnibus bill will dramatically expand them, limiting judicial discretion to levels unseen before.
Mark Hecht, a law professor at the University of Sherbrooke and senior legal counsel for child advocacy group Beyond Borders, said his group supports all of the Conservative government’s proposals relating to child sex-offences, including mandatory minimum sentences.
“The judiciary is consistently handing out sentences that are far too low for the crimes,” he said. “The only way to correct that — in the short term at least — is to impose mandatory minimums.”
The Conservatives have passed several significant crime bills since taking power in 2006, and they have already announced expansions to the prison system to accommodate increased incarceration rates.
Correctional Service Canada says existing legislation translates to a need for 2,700 new spaces at a cost of $2-billion. Parliamentary Budget Officer Kevin Page thinks that number is more like 4,200 prisoners at a total cost of closer to $5-billion — raising annual prison expenditure to $9.3-billion by 2015-2016.
“The legislation is more based on punishment than prevention, and that’s dramatically new,” said Errol Mendes, a professor of constitutional and international law at the University of Ottawa. “It’s one of the most punishment-focused [agendas] in Canadian history.”
SOME OF WHAT THE CONSERVATIVE GOVERNMENT HAS DONE SO FAR
- Toughened sentencing and bail for serious gun crimes
- Imposed mandatory jail time for drive-by and reckless shootings
- Ended so-called “sentence discounts” for multiple murder
- Ended early parole for murderers
- Cracked down on street racing and drug-impaired driving
- Raised the age of sexual consent to 16 years from 14 years
- Stopped two-for-one credit for time served in pre-trial custody
- Ended early parole for white-collar criminals
- Made it mandatory for sex offenders to be included in the National Sex Offender Registry
- Imposed tougher sentencing for child traffickers
- Made it mandatory for Internet providers to report information they receive about child pornography on the web
- Hired 1,000 new RCMP personnel
- Imposed longer wait periods for certain offenders seeking a pardon
- Taken from: Penalties for Organized Crime Act
- What’s new: Mandatory minimum sentences for drug crimes.
- What’s in it: Anyone caught growing as few as five marijuana plants for the purpose of trafficking would be jailed for at least six months, according to the latest version of the bill. Anyone caught growing more than 500 plants would be jailed at least two years. The bill would also impose a minimum one-year sentence on anyone caught trafficking marijuana, or if there was a threat of violence. That penalty would increase to two years if the trafficking took place in or near a school. The maximum penalty for marijuana production would be increased from seven to 14 years.
- The buzz: Justice Minister Rob Nicholson told the justice committee that mandatory minimums would crack down on the growing “scourge” of drugs, and that there is “support for this bill from many ordinary Canadians who are quite concerned about drug abuse.” Errol Mendes, a law professor at the University of Ottawa, noted opposition parties argued the bill could “lead to lots of young people hauled before the courts and imprisoned, finishing off their careers.”
- Title: Ending House Arrest for Property and Other Serious Crimes by Serious and Violent Offenders Act
- What’s new: The bill ends house arrest for a broader range of offences, including some non-violent offences such as theft.
- What’s in it: The bill sets broader limits on who would be eligible for house arrest. Among the new ineligible criminals are those who caused bodily harm, used a weapon, or were involved in the import, export, trafficking or production of drugs. The bill also ends house arrest when certain offences — prison breach, luring a child, criminal harassment, human trafficking, and theft over $5,000 — are prosecuted by indictment, rather than the less-serious summary conviction.
- The buzz: The Justice Department said in a statement that the move is part of its “commitment to crack down on crime and ensure the safety and security of Canadians,” while critics say the bill will send more people to jail and harden the offenders.
- Title: Eliminating Pardons For Serious Crimes Act
- What’s new: Fewer criminals will be eligible for what is now known as a pardon. Criminals would no longer be “granted” a “pardon,” they would instead be “ordered” a “record suspension” — a change in rhetoric meant to strike any implication of forgiveness. Pardons do not forgive criminal records, but they mask records so they do not surface on background checks (except when sex offenders apply to work with children).
- What’s in it: The proposed legislation would eliminate pardons for those who commit sex offences against children and for those who have committed more than three serious crimes. Also, anyone convicted of a summary conviction, which is considered less serious than an indictable offence, would have to wait five years — rather than the current three years — after the completion of their sentence before applying for a suspension.
- The buzz: Public Safety Minister Vic Toews said his bill was motivated by the revelation last year that Graham James — the former hockey coach who pled guilty to assaulting Sheldon Kennedy and another player — was granted a pardon in 2007. Still, one critic, Toronto lawyer Lorne Waldman, told a parliamentary committee last year that pardons are a valuable incentive for offenders to clean up their lives.
Harsher sentencing for child predators
- Title: Protecting Children from Sexual Predators Act
- What’s new: The bill would amend the Criminal Code to create new offences and impose increased or new mandatory minimum penalties for certain sexual offences against children. It would also update the act with language surrounding the Internet.
- What’s in it: Anyone who commits a sexual offence against a child will face at least 90 days in jail, up from 14 days. Anyone who commits a more serious sexual offence against a child will face at least six months in jail, rather than the current 45 days. There are new mandatory minimums, too: Anyone who commits bestiality in the presence of someone less than 16 years old will face a new minimum penalty of imprisonment for at least one month, for example. The bill would also add two new offences: Making sexually explicit material available to a child for the purpose of committing an offence against that child, and arranging over the computer to commit a sexual offence against a child. The former carries a mandatory minimum sentence of at least 30 days imprisonment, and makes it clear that “grooming” young people online by sending them sexually explicit material is a crime.
- The buzz: Mark Hecht, a professor of law at the University of Sherbrooke and senior legal counsel for child advocacy group Beyond Borders, said the bill ensures that child sex offenders do not receive lax penalties. He also said, however, that it could lead to more criminals pleading to lesser offences that do not carry a mandatory minimum sentence.
- Title: Sébastien’s Law (Protecting the Public from Violent Young Offenders)
- What’s new: The bill includes new provisions surrounding adult sentencing and would allow publication bans to be lifted even if the youth is not handed an adult sentence, as is currently the case.
- What’s in it: Currently, Crown attorneys only address the subject of adult sentencing if they are seeking an adult sentence. The new bill would require crowns to state their position either way, when dealing with offenders aged 14 to 17 who are convicted of murder, attempted murder, manslaughter, or aggravated sexual assault. “It’s a totally symbolic change, but it may cause crowns to seek an adult sentence when they otherwise wouldn’t have,” said Nick Bala, a professor of law at Queen’s University who testified at committee hearings in 2010 and earlier this year. Under the new bill, a judge would be able to consider deterrence as a principle when sentencing a young offender. And when a youth has been found guilty of a violent offence, regardless of whether they were handed an adult sentence, the court would now have the option to lift the publication ban. Prof. Bala said an “interesting twist” in the bill is the prohibition against youths serving time in an adult correctional facility or penitentiary.
- The buzz: The prime minister has dismissed the Youth Criminal Justice Act as an “unmitigated failure” for failing to hold young lawbreakers accountable for their crimes, but Prof. Bala fears the new bill will lead to a surge in youth incarceration — and that those youth will become hardened in prison.
- Title: Investigative Powers for the 21st Century Act
- What’s new: The act broadly updates current legislation to cover Internet and computer communications, and extends police authority to obtain certain communications data.
- What’s in it: The new bill would allow police to demand that a telecommunications service provider preserve computer data — even without a court order. Beyond that, Joseph Di Luca, a criminal lawyer and vice-president of the Criminal Lawyers Association, said “it looks like the standard required for making this demand is not the usual ‘reasonable and probable grounds,’ but the lower standard of ‘reasonable suspicion.” The bill also creates two new types of judicial orders, including one that allows police to obtain “transmission data.” This means police could find out the date, destination, time, and duration of a communication, although in principle they cannot obtain the content of the communication. The new bill would also make it illegal to make “hate material available online, by creating a hyperlink that directs web surfers to a website where hate material is posted.” It would also become illegal to possess a computer virus for the sake of committing mischief.
- The buzz: “Legislation must be modernized in order to keep pace with modern communications technology and give investigators the tools they need,” the Justice Department said in a press release last year. But Shawn Vulliez, a spokesperson for the Pirate Party online privacy advocacy group, recently wrote in a National Post editorial that “every single thing Canadians do online will be monitored” and that the “cost of this monitoring will be added to our Internet bills.”
- Title: Keeping Canadians Safe (International Transfer of Offenders) Act
- What’s new: The bill places a greater emphasis on public safety when Ottawa is deciding whether to transfer a Canadian offender serving a sentence in another country.
- What’s in it: The changes would allow the Minister of Public Safety greater discretion to deny transfer requests, for example if the Minister believes the offender would endanger public safety or continue to engage in criminal activities. The Minister could also consider whether the offender has been undergoing rehabilitation and has been cooperating with authorities.
- The buzz: “Some people will say that if you commit a crime in the States, for example, then that’s where you should do your time and it’s not our problem,” said Prof. Di Luca, who is also an adjunct law professor at York University’s Osgoode Hall. “But there are others who say the person is still a Canadian citizen, and they still have rights as a Canadian.”
Detention Without Charge
- Title: Combating Terrorism Act
- What’s new: The proposal would revive certain expired aspects of the Anti-Terrorism Act, which was passed in 2001 in the wake of the September 11 attacks.
- What’s in it: The key aspects of this bill involve investigative hearings, so-called “preventative arrests,” and detention without charge. The new bill would allow police and prosecutors to bring a person before a court and compel them to disclose information related to possible terrorism, even if that person has not been charged. That investigative hearing could be held in secret. “Preventative arrest” would allow people to be arrested without warrant under the belief that the arrest will disrupt terrorist activity and prevent a looming attack. The bill also permits detention for three days without charge — 48 hours longer than what is currently on the books. Conditions can be imposed on that person’s release, and if he or she fails to comply, they could be jailed for up to a year. The bill would be up for review within five years of passage.
- The buzz: Justice Minister Rob Nicholson said last year that the provisions are “necessary to protect our country from the threat of terrorism,” and the government points out that investigative detention powers were upheld by the Supreme Court. Queen’s University law professor Don Stuart said “there’s not much evidence that they’re needed or that they work,” and that “anything to do with secrecy should be challenged.”
- Title: Justice for Victims of Terrorism Act
- What’s new: The bill would allow victims to sue terrorists and their supporters.
- What’s in it: Victims would be able to claim and recover damages — through Canadian courts — against individuals, organizations, and foreign states listed by the Government of Canada as supporting or perpetrating terrorism. Foreign states would no longer be able to claim immunity.
- The buzz: Mr. Harper said the legislation — for which the Canadian Jewish Congress has been pushing for the past decade — gives terrorism victims the power to obtain “just compensation from those responsible.” Few criticisms have arisen, but there may be controversy over which states end up on the government’s list of countries that support terrorism.
- Title: Fair and Efficient Criminal Trials Act
- What’s new: The bill streamlines long and complex trials by reducing duplication and creating a pool of case-management judges who can assist the trial judge.
- What’s in it: In the case of a mistrial, the bill would ensure that certain decisions made during the trial are binding on the parties in the new trial. New case-management judges would be allowed to assist the trial judge by determining the admissibility of evidence, imposing deadlines, and ruling swiftly on pre-trial motions. “I think this can have a real salutary effect on the criminal justice system,” said Steven Skurka, a Toronto criminal defence lawyer.
- The buzz: “The ability to have a judge, other than the trial judge, decide questions of evidence is definitely a [positive] feature, as is the ability to preserve rulings in the event of a mistrial,” Prof. Di Luca said. He does have concerns, though: “By binding counsel to a position taken at an earlier trial, with no mechanism to change that position, seems unfair … Cases evolve and trial strategies change.”< http://news.nationalpost.com/2011/05/21/crime-and-punishment-inside-the-tories-plan-to-overhaul-the-justice-system/ >