Law Times

Law Times • aPril 27, 2015 Page 7 www.lawtimesnews.com COMMENT Why bill C-51 threatens the rule of law By Catherine morris For Law Times ne of the worst things about bill C-51 is that it threatens the rule of law and undermines the integrity and indepen- dence of Canadian courts. The bill would allow the Canadian Security Intelligence Service and the minister of public safety to co-opt and har- ness judges in violations of the Charter of Rights and Freedoms or other laws in or outside of Canada. It is important to single out this concern in the clamour of worries expressed by hundreds of academics, judges, lawyers, indigenous leaders, human rights defenders, and other experts who point out bill C-51's threats to Canadians' rights to liberty, fair hearings, privacy, and freedom of expression. In March, the masks of civility came off as several Conservative MPs insulted witnesses who criticized bill C-51. In the House of Commons debates and com- mittee hearings, MPs disparaged some of the criti- cisms as conspiracy theories with critics accused of preferring terrorists' rights over the security of Cana- dians. MP Diane Ablonczy ridiculed the concerns of the Canadian Bar Association and sneered at the "rule of law" and "principles of fundamental justice." A for- mer lawyer, Ablonczy spoke as though those ideas are novel and eccentric and appeared not to realize these concepts are foundational to Canadian democracy. Government supporters defend bill C-51 as provid- ing for checks and balances through judicial oversight. Their claim is false. Bill C-51 allows CSIS to take "reasonable and proportionate" measures anywhere in the world to disrupt any activity it believes on reasonable grounds to constitute a threat to the security of Canada. When CSIS plans actions it knows will — and not may — vi- olate the Charter or other Canadian laws, CSIS may seek the minister's approval to apply to a judge for a warrant to conduct the unlawful actions. This is a per- version of the role of the judiciary, which is to uphold the law and not authorize its violation. What unlawful acts does the bill contemplate? It ap- pears to provide for almost anything. The only unlawful activities the courts could not bless are causing death, bodily harm, violation of sexual integrity, and obstruc- tion of justice. Might the courts be asked to permit some forms of torture, ill treatment (short of killing, bodily harm or sexual assault) or extraordinary rendition? This is a distinct possibility given the current state of Cana- dian law. Even though the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrad- ing Treatment or Punishment prohibits torture and ill treatment absolutely with no exceptions whatsoever, in the 2002 decision in Suresh v. Canada (Minister of Citi- zenship and Immigration) the Supreme Court of Canada was equivocal, saying that "in exceptional circumstanc- es" deportation to face torture might be justified on na- tional security grounds. Despite urging from two UN human rights bodies, so far Canada's government has not put into law its treaty obligation to ban deportation to torture. A government amendment saying CSIS will have no law enforcement powers provides no com- fort as no one ever imagined it did. The government refused to amend bill C-51 to preclude CSIS from having the power to detain. Canadians may never know whether judges actually do issue warrants for law-breaking by CSIS because it will obtain the warrants through secret hearings based on written evidence only. The judge will consider only the views of CSIS and there is no appeal. Canada has a state duty to protect its citizens' right to life and security. That includes the duty to take effective measures to prevent and prosecute crimes and violence of all kinds, including acts such as the appalling attacks against Parliament and the murders of Canadian sol- diers in October 2014. Bill C-51 fails to demonstrate how it will be better than existing legislation at ensur- ing the rights to life and security on the ground. But the language of bill C-51 is clear in its intention to violate numerous internationally protected rights. In response to public pressure, the government of- fered minor amendments. While the Liberal party doesn't like bill C-51, it plans to support it while try- ing to soothe worries with a promise to amend it if it wins the election later this year. However, no respon- sible parliamentarian, regardless of political loyalties or ideological persuasion, can rightly support any law that will subvert Canada's independent judiciary, violate its international human rights law obligations, and pervert fundamental principles of justice and the rule of law. LT uCatherine Morris is an adjunct professor at the Univer- sity of Victoria Faculty of Law. u SPEAKER'S CORNER Life-without-parole bill serves little purpose turned 21 in prison doin' life without parole," Merle Haggard sang in the country classic Mama Tried, a radio staple also covered in concert by the Grateful Dead for many years. The chorus concludes: "Mama tried to raise me better, but her pleading I denied; That leaves only me to blame cause Mama tried." Prime Minister Stephen Harper pur- ports to be a music aficionado, so for all I know he had that in mind when he an- nounced his government's new life-with- out-parole bill in a campaign-style event on March 4. Read one way, Haggard's lyr- ics seem to endorse the kind of individual responsibility ethos Conservatives claim to venerate, all topped off with a family-values message of filial piety. Harper's announce- ment on March 4 was likewise rife with wholesome, red-meat sentiment. Taking a courageous stand against cop killers and serial predators, he declared his new legisla- tion would "ensure that for the most heinous offenders and the most horrific crimes, a life sentence in Canada will henceforth mean exactly that — a sentence for life." And so, the government introduced the subtly titled life means life act on March 11. It would mandate life without parole for certain aggravated forms of first-degree murder, such as the planned and deliberate killing of a police officer or where there was "conduct of a particularly brutal nature." It's not really life without parole, however. Offenders subject to the new law could still petition the minister of justice for release af- ter 35 years. And anyway, a life sentence al- ready means life in that those subject to it re- main on parole until they die and are liable to go back to jail at any time. But that's splitting hairs, I guess, and Harper evidently doesn't trust the Parole Board of Canada in the first place. Lest anyone worry the 35-year review could devolve into an orgy of due process and adjudicative independence, Harper was quick to assure us that "unlike parole, deci- sions will not rest with an appointed board but with the federal cabinet, men and women fully accountable to their fellow citizens and to the families of the victims of these crimes." Thank goodness. Not counting the unspoken imperatives of an impending election, what reasons did they offer in support? Justice Min- ister Peter MacKay boasted the new bill is part of the govern- ment's effort to keep "our streets and communities safe for Cana- dians and their families." That's nonsense, of course. As virtually every commentator so far has pointed out, the spectre of a lax parole board releasing dangerous murderers is entirely mythical. Murder in general has a low recidivism rate; the vast majority of killings result from a temporary conf luence of bad inf lu- ences (such as rage, jealousy, intoxication, and desperation) that will never realign for the same person again. The only sys- tematic study I'm aware of tracked the 658 murderers released on full parole in Can- ada between 1975 and 1990. Of those 658, five killed again. All of those five had been convicted of what used to be called non- capital murder, meaning the new law likely wouldn't have applied to them anyway. Likewise, the famous cases that get politi- cians' juices f lowing are all about murderers who either died in prison (Clifford Olson) or will do so in time (Paul Bernardo). And note that another one of the government's previ- ous efforts that has been in force since 2011 already allows the imposition of consecutive periods of parole ineligibility for multiple murderers. There's also the long-standing availability of an indeterminate prison sen- tence for someone declared a dangerous of- fender. So the universe of people to whom this new law would make a practical differ- ence seems awfully small. Maybe the government's aim is more philosophical. The Department of Justice's background information claimed the legislation would "align Canada's criminal justice approach with likeminded coun- tries such as the United King- dom, New Zealand, the United States, and Australia." The idea that we're in sync with the United States on penal policy is troubling but increasingly accurate. For the record, almost 50,000 people are serving life sentences without pa- role in American prisons. Several thousand of them were juveniles when they committed their offences. One of them is Henry Montgomery, a man convicted in 1963 at the age of 17 for the murder of a police officer in Loui- siana whose case the U.S. Supreme Court recently agreed to review. Three years ago, the court held (but only by 5-4) that the Eighth Amendment's guarantee against cruel and unusual punishment forbids mandatory life without parole for juvenile offenders. (Minors can still be eligible, but the court needs to be given the choice of whether to impose it.) Now Montgomery will be asking the court to apply the rule retroactively to his case. Unfortunately, experience suggests that there are at least four judges on the court who have no problem with continuing to deny a chance at parole to an old man who committed a crime while a kid during the administra- tion of former president John F. Kennedy. But that's the United States. Frankly, I was surprised to learn that the others on the Department of Justice's list of criminologi- cal soulmates all have life without parole. In- deed, Australia, New Zealand, and Britain all provide for it in certain narrowly defined circumstances. Notably, the federal depart- ment's tally of the likeminded didn't include the European Court of Human Rights. It held in 2013 that life without parole contravenes the European convention's prohibition of "inhuman or degrading treatment or punishment" in Article 3. The claimants in that case were three men who each received a so-called "whole life order" after being convicted of mur- der in English courts. Under English law, where the sentencing judge makes such an order, only the cabinet can ever release the offender on compassionate grounds such as terminal illness or serious incapacitation. The Strasbourg court thought that wasn't good enough, holding that a life sentence would contravene Article 3 if there's no "prospect of release and a possibility of re- view." It argued that a person couldn't legiti- mately be imprisoned unless there are valid penal grounds for the detention: deterrence, public protection, rehabilitation, and so on. But the balance between those factors may shift over the years following the passing of a sentence. Who's to say that the 21-year-old killer in the dock today won't be a good can- didate for release decades down the road? That seems right to me. I think there's tre- mendous value in a sentencing regime pre- mised on the notion that no one is in princi- ple beyond redemption even if some people are in fact. Our system does not, should not, and never has lightly granted release to truly heinous killers who pose a real threat. Pan- dering politicians like MacKay don't care about such realities, of course, and this law has the air of a government trying to wring the last few drops of populist juice from a criminal justice lemon already ground to a fine dry pulp. The Supreme Court's power- ful rebuke of mandatory sentencing in in R. v. Nur seems unlikely to sway the govern- ment. There will always be more fears to stoke, more scapegoats to shun, and more handy solutions to fake problems. My hope is that we're nearing the end of this sordid routine as a surefire political strategy. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. O A Criminal Mind Matthew Gourlay " I

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