Law Times

Law Times • December 14, 2009 FOCUS PAGE 11 'Commitment' to fighting crime a big buzzword BY GLENN KAUTH Law Times against crime have a favourite word: "commitment." "It is the latest step in our continuing commitment to tackling crime," Justice Minis- ter Rob Nicholson said in May in announcing new criminal law procedures. "Th is is another example of K our government delivering on its commitment to strengthen- ing Canada's criminal justice sys- tem," Conservative MP Jacques Gourde said the next month in touting new restrictions on early parole for convicted murderers. Th e word, along with lan- guage about "standing up for victims of crime," comes up re- peatedly in government news releases, another indication of its unabashed focus on moving its crime agenda forward. In fact, 2009 turned out to be an exceptionally busy year for the crackdown. Th e Conservatives introduced and passed a fl urry of legislation, including an end to two-for-one credit for time served while accused criminals wait in remand and new laws tar- geting identity and auto theft. "We are continuing to fol- low through on our tackling- crime agenda," Gourde said in June. "We are standing up for victims of crime and we are putting the rights of law-abid- ing citizens ahead of the rights of criminals." Critics, of course, aren't so sure. Many defence lawyers are skeptical of the moves, which they say will merely cost the government more in building and running prisons while doing little to deter crime. Criminals, the argument goes, don't neces- sarily consider the possible pen- alties they'll face while breaking the law. At the same time, added resources would go to better use if the government put them into addressing the social causes of crime, critics say. Th e arguments on both sides are perhaps somewhat stale giv- en that they've both been mak- ing them for years. But in light of the major changes to our laws, a fresh perspective might be of some use. In November, an outsider's viewpoint came when U.S. criminal justice researcher Ja- son Ziedenberg spoke at the Criminal Lawyers' Association conference in Toronto. "We've got the highest rates of lethal violence in the industrialized world," he said in remarks that were highly critical of the Unit- ed States' long-standing bid to tackle crime through aggressive sentencing laws. Among the problems there, Ziedenberg said U.S. prisons now house two million people at a cost of $70 billion a year, an amount that's becoming increas- ingly unsustainable. In Califor- nia alone, 42,000 people are now in jail under the infamous Justice Minister Rob Nicholson shepherded an aggressive expansion of the government's crime agenda this year. three-strikes law, many of them for minor off ences, he noted. In many cases, the use of manda- tory minimum sentences and the introduction of laws to make it easier to transfer youth to the adult court system have exacerbated the issue, he said in his Nov. 28 speech to Ontario criminal defence lawyers. But in turning away from the familiar rhetoric about the failure of such laws, Ziedenberg said U.S. governments have in recent years been changing their approach. Already, 2009 is to be the fi rst year in a long time that U.S. prison spending has gone down, he pointed out, noting that New York has loosened its so-called Rockefeller drug laws that set strict minimum sen- tences for such crimes. As well, the recently intro- duced federal justice reinvest- ment bill also holds promise given its proposal to provide funding to states that move re- sources away from prisons and into parole programs, accord- ing to Ziedenberg. In explaining the shift, he gave a number of reasons. "Cur- rent policy simply costs too much," he said. "Th e decline in tax revenues is creating the perfect storm where they just can't pay for this anymore." He also noted that while incidents of lethal violence remain high, rates for other crimes have gone down over the past 14 years. In addition, the fact that the system has put 13 million people in jail over the last 10 years has meant that when they get out, they're quite willing and able to tell friends and family about the limited use of prisons, he added. But what was perhaps most interesting was Ziedenberg's description about how the critics managed to help bring about the recent changes. Research into the eff ects of tough-on-crime policies was key. For example, data show- ing the correlation between increasing spending on prisons and declines in resources for education helped turn the tide. At the same time, building al- liances with the presumed op- position — conservative politi- cians — was another factor. As ey political fi gures involved in the fed- eral government's fi ght Ziedenberg noted, proposals to loosen youth laws got a signifi - cant boost from former Repub- lican senator Alan Simpson. In fact, he was a bigger advocate for the issue than many allies in the Democratic party, accord- ing to Ziedenberg. "He's a right-wing fruitcake but he cares about this more than I've ever seen a liberal Democrat do," he said. But what's most important is showing that tough laws don't work. For example, pro- viding evidence that locking up parents interrupts the social fabric for their children and therefore does more harm than good when it comes to crime rates is particularly eff ective, said Ziedenberg. "One of the biggest myths is you can't do anything about it," he told the audience. Here in Canada, meanwhile, governments are largely mov- ing in the opposite direction. But it's worth noting that it's not just federal Conservatives who are making the new laws happen. In October, for exam- ple, the two-for-one legislation managed to get Senate approv- al in part due to the absence of Liberal senators whose party had been proposing amend- ments to weaken it. Of course, the issue isn't al- ways about philosophical ques- tions on whether tougher laws work. Last week, for example, the Canadian Bar Association came out with criticisms of the federal government's bid to in- crease jail terms for white-collar crimes. "While fraud can cer- tainly be a serious crime with devastating consequences for its victims, based on our experience as both Crown and defence law- yers from all regions of Canada, we believe that bill C-52 is di- rected at a problem that does not exist," said Suzanne Costom, a member of the CBA's national criminal justice section. Th e problem, she said, is that judges already have the latitude to hand down severe sentences for major frauds, a liberty they regularly make use of. "We be- lieve that bill C-52 would not add to the tools already found in the Criminal Code." Th e debate, then, continues. • A crackdown on identity theft through legis- lation that received royal assent this fall that would create three new off ences targeting the early stages of identity-related crime; • Tackling auto theft by creating a separate of- fence of theft of motor vehicle; • A new law that received royal assent in Octo- ber that would limit judges' ability to award extra credit for time accused people spend in jail waiting for their case to make its way through the system; • A repeal of the so-called faint hope clause that would bar people convicted of fi rst- or second- degree murder from applying for early parole; • A new law to make all murders committed in connection with organized crime fi rst-degree murders; • An end to so-called sentence discounts for multiple murderers who would face consecu- tive parole ineligibility periods; • Denoting a mandatory two-year minimum Key developments in Canada's criminal laws this year: jail sentence for frauds over $1 million; • New drug laws that would, among other things, set a one-year mandatory penalty for dealing drugs such as marijuana when a weapon or organized crime are involved; • A bid to protect kids from sexual off ences on- line by requiring Internet service companies to notify police of suspicious activity; • Legislation to allow police and probation of- fi cers to demand blood samples in order to enforce court orders against drug and alcohol use; • Updates to criminal law procedures that would, in addition to other changes, allow police to take fi ngerprints and photographs of people in custody before charging them; • Further restrictions on conditional sentences for serious property and violent crimes by, for example, removing them as an option for any off ence for which the maximum penalty is 14 years or life. 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