Law Times

Law Times • January 11, 2010 NEWS Relief as controversial bills die Prorogation means the end of some long-awaited legislation BY TIM SHUFELT Law Times bad. Some legal observers are lamenting W the loss of some much-anticipated legislation. Others are breathing sighs of relief, however, that among the dead bills are many deserving casualties. Prime Minister Stephen Harp- er's government has prorogued Parliament with 37 bills yet to be passed, more than a dozen of which are criminal justice laws introduced as part of the Tories' tough-on-crime agenda. In criminal justice circles, opposition to those bills was nearly universal, says William Trudell, chairman of the Cana- dian Council of Criminal De- fence Lawyers. "From Crown counsel to police offi cers to corrections workers to social workers to judges to defence counsel, [all] feel that these tough-on-crime measures are sowing the seeds for the implosion of the sys- tem," Trudell says. Suspension of the House of Commons means all govern- ment-sponsored bills short of Royal assent die on the order paper. Th e government may re- introduce outstanding bills in the next legislative session, but those at various stages in the Senate must return to the be- ginning of the process in the upper chamber. Th e Tories said they would their reintroduce consumer safety bill and anti-drug law in their original form. Both pieces of legislation resulted in an im- passe between the government and the Senate over proposed amendments. But the future of many other 'Hopefully, it's just a bump in the road,' says Barry Sookman, who laments the end of the government's anti-spam bill. bills remains uncertain. Even if the Harper govern- ment reintroduces them all, justice offi cials and observers hope to see some sober second thought, Trudell says. "Th e fact that they get re- introduced means people will take a second look at them." While the bills sent the mes- sage to the electorate that the government was cracking down on crime, the proposals don't re- fl ect the realities of the criminal justice system, Trudell argues. Bills such as the one to repeal the faint-hope clause merely ex- ploited misconceptions about crime and punishment in Can- ada, he says. "Th at was not a bill that was necessary." He notes anecdotal evidence was promoted that murderers were walking the streets, an as- sertion that ignored the multi- stage process involving screen- ing by a judge, jury, and the parole board before early release is granted under a faint-hope application. Meanwhile, those members of Parliament who knew the bills, while eff ective at bolster- ing punishments, did little to Law List, 2010 More than a phone book Canadian Your instant connection to Canada's legal network, available in print or electronically! 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Honsberger, Q.C. and Vern W. DaRe Bankruptcy in Canada, Fourth Edition (2009) John D. Honsberger, Q.C. and Vern W. DaRe ith the suspension of Parliament, the good dies with the actually address crime, cen- sored themselves for fear of be- ing branded soft on criminals, Trudell says. "When the new session comes in, we can maybe throw that out the window right away," he says. "You can't sit on your hands just because you're afraid of getting beat at the polls." As a result, he's calling for a principled more examination of justice measures. "Surely, the politicization of the criminal justice system has to stop." A common complaint about most of Harper's crime bills is the restriction of judicial discre- tion, another reason proroga- tion has prompted some palpa- ble relief, according to Trudell. Among the scuttled legisla- tion is the proposed end to con- ditional sentences for a number of crimes, including breaking and entering, arson, and theft over $5,000. Also dead is the bill propos- ing mandatory minimum sen- tences for drug crimes. "Good heavens. Mandatory minimums don't work," Trudell says. "Th e reverberations through the system, they make everyone's jobs more diffi cult." Crown prosecutors would have had less leeway in recom- mending appropriate punish- ments, and judges would have lost discretion in handing down sentences, he says. Before the parliamentary ses- sion came to a halt, however, the Senate passed the govern- ment's organized-crime legisla- tion as well as the bill ending two-for-one credit for pretrial custody, which garnered wide- spread criticism. Opponents said government claims that inmates often delib- erately delay their own proceed- ings in order to earn double credit are simply not true. "We're increasing the lines to jails, and now they're talking Sookman, an intellectual prop- erty lawyer with McCarthy Té- trault LLP. "It's regrettable that it died." Sookman had previously voiced concerns on behalf of the business community that the bill as written could prohibit content providers from installing small What I will say about this bill is that at its best, it is misguided; at its worst, it is cynical and cruel. . . . This is a piece of legislation designed to solve a problem which, to my knowledge, does not exist anywhere other than the popular imagination. about bigger jails," Trudell says. Meanwhile, Toronto lawyer Paul Alexander told a House of Commons committee last year that reducing pretrial credit would worsen prison conditions. "What I will say about this bill is that at its best, it is mis- guided; at its worst, it is cyni- cal and cruel," Alexander said. "Th is is a piece of legislation designed to solve a problem which, to my knowledge, does not exist anywhere other than the popular imagination." On the other hand, along with controversial bills, proro- gation also nullifi ed legislation that had widespread support. Bill C-27, also known as the anti-spam bill, included mea- sures to curb electronic identity theft, phishing scams, and the spread of malicious spyware. "Th e bill was obviously an important bill," says Barry Congratulations applications or HTML code re- quired to surf a web site unless fi rst asking for consent. But Sookman says most of his concerns were addressed at a House of Commons commit- tee. With prorogation, however, he says Canada still lacks the legislation needed to bring it in line with other countries. "Hopefully, it's just a bump in the road." Meanwhile, the chorus tak- ing a stand against the most re- cent prorogation grows. Many Tory opponents, as well as some of the country's foremost constitutional experts, have denounced the suspension of Parliament. A Facebook page of angry Canadians has a steadily build- ing membership, and protests are scheduled for several cities, including Toronto, later this month. LT PAGE 3

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