Law Times

Law Times • OctOber 6, 2014 Page 7 www.lawtimesnews.com COMMENT Farming crime bills to backbenchers leaves justice agenda a mess he federal criminal justice leg- islative agenda is a mess, not just because so many of the government's recently enacted and currently proposed laws are either pointless or regressive but also because of the rank amateurism that now seems to pervade the legislative process. A recent series of articles in The Globe & Mail has detailed the extent of the dis- array. The sheer carelessness on display by parliamentarians of all parties is breath- taking. The wrong version of the dubi- ously titled fairness for victims act went to the Senate for approval. Moreover, the House of Commons unanimously ap- proved the bill without anyone pointing out an obvious constitutional f law in one of the core provisions. The bill will increase the period of time an unsuc- cessful applicant for parole must wait before reapplying to five years. It pur- ports to apply this new rule retrospec- tively to prisoners already in the system. Earlier this year, however, the Su- preme Court in Canada (Attorney Gen- eral) v. Whaling held that the retrospec- tive abolition of early parole violated the double-jeopardy clause under the Charter of Rights and Freedoms. Now conceivably, there may be a theory dis- tinguishing this new law from Whal- ing and upholding its constitutionality. That's what the government pays lawyers for. But nobody in the House of Com- mons tried that because nobody spotted the issue. And the problem wasn't an ob- scure bit of legal arcana; it was an issue f lagged mere months before by a heavily publicized Supreme Court ruling on ma- terially similar facts. That this wasn't at the forefront of the minds of those who approved the new law betrays a shocking lack of knowledge and attention on the part of lawmakers. The Supreme Court is just down the block. It puts its stuff online. And this wasn't a vote to congratulate a volleyball team or name a new post office; it was an effort to deprive a lot of people of basic liberty for lengthy periods of time. I'd say it deserved a bit more care than Parliament appears to have given it. Where were the govern- ment lawyers in all of this? That's an interesting story. Again, according to the Globe, backbenchers have tabled 25 out of 30 current or recently passed crime bills. In the case of the fairness to victims act, Conservative MP David Sweet had in- troduced the bill. The important point is that these private member's bills receive no scru- tiny from Justice Department lawyers for constitutionality. It seems to me that they receive little scrutiny for anything by anyone. It used to be the case that such scrutiny wasn't necessary because private member's bills never became law anyway. What changed? It's cer- tainly not a f lowering of representative democracy or MP empowerment. As detailed in a National Post excerpt of former Conservative MP Brent Rath- geber's new book, calling contemporary government MPs trained seals is an insult to the independence of a noble mammal. It doesn't take a cynic to rec- ognize that sending these bills through Parliament on the private member's track has the collateral effect of shield- ing legislative efforts from scrutiny by the people who have the training and inclination to ask tough questions. I wrote my last column on the theme of excessive criminalization from a broadly philosophical perspective. Anyone wishing to see this phenomenon in action on a very prosaic level can do as I did recently by going to the bills before Parliament section of the main Parlia- mentary web site and typ- ing Criminal Code into the search engine. For example, backbench Ontario MP David Tilson tabled a bill making it a spe- cific offence to deface a war memorial. That was already a crime as the offence of mischief has always made such acts punishable, but this new provision has the added bonus of a mandatory $1,000 fine for a first of- fence and jail thereafter. Repeat offend- ers can get up to 10 years in prison. Who are these serial cenotaph defacers? They must exist or Parliament wouldn't go to the trouble of enacting a special legal re- gime to deal with them, right? Before a Senate committee, Tilson talked about the case of someone throw- ing eggs at a memorial in Orangeville, Ont. He was understandably upset and did some research on the Criminal Code. "When one of these honoured structures is vandalized or desecrated, it shocks and sickens us and rightly so," he told the committee. "As the mischief section of the Criminal Code is cur- rently written, however, cenotaphs and war memorials fall into the same cate- gory as a mailbox or a parking meter or other mundane property when it comes to penalties for vandalism. Mr. chair- man, that's just not right." Tilson is correct. Our Criminal Code does a poor job of carving out specific property offences based on the particular identity of the thing stolen, converted or defaced. The government recently took up this cause by enacting an offence of auto theft. And why stop there? No doubt there are other coura- geous parliamentarians waiting in the wings with victim-specific laws to crack down on harassment of war widows, cruelty to clergy, and fraud on orphans. Members from other parties have gotten into the act as well, albeit to a lesser extent. NDP member Randall Garrison has stepped up to the plate with a proposed new offence of stealing copper wire or copper pipes from criti- cal infrastructure. In a news release, he explained that copper theft is a pricey problem in the electricity sector and that by deterring it, "we can save Cana- dians money and protect our country's critical assets which help keep our com- munities safe." That may be so. How- ever, I suspect copper theft has more to do with market conditions and enforce- ment capacity than the alleged legisla- tive gap the proposed new law aims to fill. In the 1970s, we had luminaries like Antonio Lamer and Martin Friedland at the Law Reform Commission devel- oping proposals for systematic modern- ization and rationalization of our crim- inal law. The commission no longer ex- ists. Now we have backbench MPs seek- ing out sentimental objects to which they can affix new minimum sentences. Some MPs and senators still do serious and honourable work on criminal jus- tice issues outside of the spotlight. But overall, I'd like to think we could do a little better. LT uMatthew Gourlay handles crimi- nal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. a peek at justice issues from the opposition side of the House pposition justice critic Fran- çoise Boivin is one tough lady who makes life a living hell for the Conservative govern- ment every day of the week in the House of Commons. Boivin, who became the NDP MP for the Gatineau riding across the Ottawa River from Parliament in 2011, doesn't hesitate to tell Prime Minister Stephen Harper and Justice Minister Peter MacK- ay over and over what they're doing wrong on justice issues. That's her job. There are enough boys in short pants around Harper telling him how great he is. Harper froze federal legal aid fund- ing in this country a decade ago, she says, despite repeated cries from the Canadian Bar Association and demands from the Commons. It makes her angry. "It doesn't take a genius to figure out what needs to be done," she says. There also aren't enough judges. Take Quebec as an example. The Harper gov- ernment said in the last budget there would be 11 more Superior Court judges but it only appointed seven. What hap- pened to the other four? There aren't enough judges in Alberta, either. Nor are there enough federal pros- ecutors in most provinces. Boivin says Parliament has had a diff icult time trying to find out how much the federal gov- ernment has spent on fighting legal cases. "All we get as an- swers are platitudes," she says. "If the government sat down and negotiated in- stead of going to court with $1,000-an-hour lawyers, we would be a lot better off." Public Works and Gov- ernment Services Canada lets cases go to court rather than negotiating with the costs ending up on the Justice Department's bill, she says. It hasn't escaped her that Harper has lost five major cases that ended up go- ing all the way to the Supreme Court of Canada. It infuriates Boivin that the Conserva- tive government hasn't been applying con- stitutional tests to legislation before it goes to Parliament. That leads to costly court challenges after the bill has become law, she notes. And the Conservatives have a way to avoid testing legislation ahead of time. "In- stead of ministers presenting legislation, they give it to one of their backbenchers to introduce in Parliament," she says. "The backbencher will bullshit me that he's con- sulted a constitutionalist." Boivin points to legislation related to child kidnapping. The legisla- tion would force judges to hand down a four-year minimum mandatory jail sentence for child kidnapping. Boivin says she did some research on child kidnapping and discovered that at pres- ent, judges are handing down eight-year sentences for the offence "and more often than not, it's 16 or 20 years if there is violence or a killing." "So now we have a bill before us that says we must have a four-year minimum sentence for child kidnapping," she says. "Are the Conservatives trying to lower the sentence for child kidnapping?" Boivin doesn't like the Conservatives' bill C-26 related to the sex offender regis- try either. The Conservatives, she says, are "selling it as if it will mean an end to all sex offenders on our streets." "It's not because we have Joe Blow's name on a sex registry that there will be fewer sex offenders on the streets," she says. "That won't solve the problem. But if you tell me we should work harder at getting sex offenders off the streets, then you'll have me on board." Boivin says she speaks officially for the New Democratic Party of Canada on justice matters, but that doesn't mean she decides every issue. She has to talk to lawyers, police, vic- tims' rights associations, and her NDP caucus before she can make a public state- ment. The caucus has to decide whether it will propose amendments, try to send a bill to committee or vote against it outright. In committee, she tries to convince MPs from other parties to see her side of the issue even if she knows the government will reject her views. Sometimes, she has to take chances. For instance, the Conservatives are promis- ing to spend $20 million to help sex trade workers as part of their new prostitution law. But then it turns out, she says, that it's planning to spend the money over five years across the 10 provinces and three ter- ritories. That's not a lot for each province. In fact, the money isn't even in the pros- titution bill. Harper will decide who gets it. Boivin says it could end up that Harper passes the money out to his favourite reli- gious groups rather than women's organiza- tions or sex-trade worker associations. It all adds up to challenging work for a justice critic. "But you still have to try," says Boivin of the need to keep pressing her case. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e- mail address is richardcleroux@rogers.com. A Criminal Mind Matthew Gourlay T O The Hill Richard Cleroux

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