Law Times

Law times • OctOber 7, 2013 T Page 7 COMMENT Crime message diluted as government fails to maintain records repository he Conservatives have been saying for some time now that they want criminals off the streets but they keep doing the opposite by making it easier for smart criminals to get out of jail free while awaiting trial. The RCMP is in charge of maintaining something called the national repository of criminal records. It costs an estimated $8 million a year. The names, dates of trials, bail hearings, and anything else pertaining to the criminal records of virtually all of the major offenders in Canada, including any changes in length of sentence, parole terms, time off for good behaviour, and all dates and results of appeals, all go into the electronic database. It's a monstrous bank of information. It's also crucial information as any court decision in one province has to follow criminals or those accused of a crime into the next jurisdiction they end up in. But when officials aren't keeping the repository up to date, as is happening right now, it's hell for lawyers, prosecutors, judges, and anybody else linked to the criminal justice system. They have no idea what they should be doing or who they're dealing with. NDP justice critic Françoise Boivin says the notion that serious criminals are hitting the sidewalk just because the repository isn't up to date really burns her. What's the use of the Conservative government piling on longer sentences time off for good behaviour? and newer criminal offences if those convicted by the court The Hill Was there an appeal of the conviction? Was it successful? don't even serve their time? If so, what was the reason? Some of them get out on bail Did someone commit a and simply never come back. crime while out on bail, paBoivin has been looking role or special leave for a faminto the problems with the reily member's death or another pository. In doing so, she says valid reason? she found out the repository That's why keeping crimi"is outdated by 14 months when it comes to criminal Richard Cleroux nal records is such a difficult and time-consuming job. Of records in English and up to course, nobody ever said havthree years in French." The Conservative government's ap- ing safe streets and communities was a proach to corrections is only part of snap or something as easy as just piling the problem. "One of the reasons is that on another few months of jail time for a through their backbench in the Com- certain crime. A big issue is the cost. Boivin says mons, Conservatives keep introducing another $8 million may be necessary to multiple piecemeal bills," she says. "They include harsher sentences or do the job properly. If the Conservatives aggravating factors for one offence or an- want safe streets and communities, as they say they do, they have to be ready to other." Often, the courts don't get the prison- pay hard cash for them. They need speer's criminal records in time to consider cial people to do the job. Not all cops like to work computers them before handing down the sentence. Any criminal lawyer will tell you entering names and dates. It's a lot more there's a world of difference between two exciting to chase after criminals than years less a day and anything more than making entries on a computer all day that. The whole idea of the criminal re- long. The auditor general pointed out probcords repository is a lot more complex than keeping track of convictions or lems with criminal record keeping in 2011 and how it was destroying Conserwhen someone gets bail or parole. For instance, how many convictions vatives' plans to jail more people for lonhave the courts handed down to a par- ger periods of time. The Conservatives ticular criminal? How many of them has said thank you to the auditor but then the offender served either in full or with turned around and did nothing about the staffing problem. The new justice minister, Peter MacKay, has yet to explain how he plans to deal with delays in updating the national repository of criminal records. In the meantime, there are criminal records horror stories coming out of the courts every day. Figuring out the criminal record of an accused person shouldn't be guesswork for a judge, defence lawyer or prosecutor. And it certainly shouldn't be the accused deciding what the court knows as the following scenario demonstrates. Judge: "Excuse me, young man, do you have a criminal record?" Accused: "No, your honour, never been in court in my life before!" Judge: "Oh well, I guess I can give you bail this time. But be sure you report here for your court date." It's especially worrisome when the accused has a record as long as the judge's arm and knows where the snitch lives. Boivin says the situation must change. Talk isn't enough. The Conservatives, after seven years in power, should be ready and willing to do more than just talk and slap on another new law. The government should administer the law, not just legislate it. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His email address is richardcleroux@rogers. com. Lawyer issues clarion call for fixing family law BY ANDREW FELDSTEIN For Law Times F In one case, I was representing the husband against a wife who had publicly stated that her goal was to bankrupt him. As the case proceeded to his advantage, her behaviour became vicious and she said she was going to burn down the family home rather than have it sold. The court struck her pleadings, meaning the judge ruled she had no standing. And she had such large legal bills, including a costs award making her pay her husband's costs, that she ended up with nothing and living in poverty. Politicians, then, need to start addressing these issues. The separation and divorce process itself, including child access, custody, and support, is subject to the Federal Divorce Act for married couples. This means federal MPs are responsible for changes to the act. Provincial law governs the division of property, which makes MPPs and provincial politicians across Canada responsible. Common law couples are often subject to provincial laws governing child access, custody, and support. Change must start with new legislation. Federal and provincial politicians must change the laws and regulations that drag out divorce and increase costs. To make that happen, we need ideas. Part of the job of politicians is to think of improvements to governing Canada. I'm nudging Canadian politicians to make family law more efficient and less bureaucratic. Besides the politicians, I have also sent my "It's Time For Justice" white paper to more than 100 journalists. I ask journalists for their own ideas, too. I am asking journalists to help hold Canadian politicians accountable. Equally important, I am looking for help. I cannot effect change by myself. I am looking for comments and constructive ideas from anyone who wants to help. Please don't stand back. Get involved. LT u SPEAKER'S CORNER or more than 20 years now, we have been talking about improving access to justice in Canada. Yet we have made barely any progress. The time for talk is over; the time for action is now. The lack of justice in family law — the area I have been practising for 20 years — is a particular travesty. Simply put, improving access to justice in family law means reducing the time and costs to get divorced. This is why I have launched a campaign on the issue. I am advocating for desperately needed changes in family law. I ask the politicians responsible for divorce law to recognize their obligations to all Canadians. I have sent every federal MP as well as all MPPs and dozens of other politicians across Canada the first in a series of white papers examining the processes that make separations take too long and cost too much. The first white paper contains observations from the battlefields and is available online at itstimeforjustice.ca. There will be five more editions of the white papers. The Canadian divorce rate is currently at 38 per cent. This means family law directly affects 38 per cent of Canadians. Indirectly, it affects everyone in Canada. Just because young children can't vote doesn't mean our politicians don't represent them when they're looking to improve — or stall or ignore — laws about their parents' breakup. In fact, it's quite the opposite. We should worry about the negative impact of a lengthy divorce fraught with emotion and stress on children. Those inside the legal world, of course, know the problems and bottlenecks well. But the politicians responsible for our laws and the journalists responsible for explaining just about everything to just about everyone are less aware of the problems. It is only when Canadians go through the process of separation and divorce that the gaps, cracks, and disconnects become obvious. I can provide a few examples. As many lawyers know, every month's delay in family court is a big proportion of the life of a child. There are two problems. The first problem is a judicial system filled with delays. And the second problem is that one or both of the spouses often move at too slow a pace. One time, a woman came into my office saying she and her husband needed to separate. "We aren't getting along," she said. "I think he should move out of the house, but he refuses. We're arguing all the time, and it's just an awful place for the kids." And here's where justice bogs down. I can't bring a motion in family court to force him out of the house until after we have a case conference. And if I apply today, I'll probably get my case conference scheduled four or five months from today. And the motion to force him to move out will take another month or two after that. I don't get to open my mouth to get him out of the house for six or seven months from the start. If I am unsuccessful, we may have to wait a whole year for a trial date. In the meantime, everyone suffers, especially the children. There are other issues at play. In my view, we need to start thinking not of winning or losing but of creating a satisfactory outcome for our clients by letting them keep as much of their money as possible for themselves and the children instead of forcing high lawyer bills. The reality in family law is that everybody is going to lose. The real goal should be limiting how much you are going to lose. If a couple wants to be good and fair to each other, they can probably reach a deal quite quickly and save money. An expensive, high-conflict dispute arises when one person acts unreasonably and the other side must fight. www.lawtimesnews.com Andrew Feldstein practises family law at Feldstein Family Law Group Professional Corp.

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