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Law TiMes • March 9, 2009 nounced that he is increasing pen- alties for drive-by shootings and gang violence. It comes after 18 shootings J leaving six dead in six weeks on the West Coast, most of them in gang killings. This is nothing new from the Conservatives. Every few years they toughen the laws. Two years ago it was for Toronto. Now it's for Vancouver. Whenever there's a sudden spike in criminal violence somewhere in Canada, Stephen Harper and his Conservatives very quickly take ad- vantage of it. They attack the Op- position as soft on crime, attack the judges as irresponsible, and haul out more tougher sentencing legis- lation and quickly force it through Parliament to await the next out- break of violence. They present themselves as a bulwark against all those softies that would have us all killed by criminal gangs. The latest legislation from Harper and Nicholson imposes a mandatory minimum of four years for convic- tion of a drive-by shooting, and if it's done by a gang member (try prov- ing it in court) or using a restricted weapon (try finding it) the penalty is increased to five years minimum. Whoopie! That'll really frighten the gangs! Gang members threatened by a rival gang moving into their terri- tory don't say to each other, "Oh my, we mustn't go shoot up their clubhouse because Stephen Harp- er has a four-year prison sentence for drive-by shootings." Crimin- ologists and police experts say that tougher laws don't deter violent criminals or gang members. It is more complex than that. Violent crooks don't think like the rest of us. That's why upping jail time doesn't work. Prevention works. Get them while they are young. More cops works. Better education works. Fighting poverty works. Actually Nicholson wasn't as bad as Harper on this day. The repor- ter afterwards asked if the legislation would solve gang violence on the West Coast. (The reporter added, "In time for the Olympics!") Nicholson replied only, "These are all steps in the right direction." "Will it cut it in half?" continued the reporter. "No, it is only one measure," re- plied Nicholson. It was Harper him- self out on the West Coast for his photo op later in the day who went over the top, standing in front of an Letters to the Editor Re: "Play HST card carefully Mr. Premier" (Ian Harvey, Feb 9/16, 2009, page 7). As a GST expert, I believe that Ontario should join the harmonized sales tax system and thus harmonize its retail sales tax with the GST, for a reason that has not received any public attention. (This is in addition to the reason put forward by economists, which is that the GST is a much better tax.) Once Ontario harmonizes, the "tax- It's nothing new from the Conservatives ustice Minister Rob Nicholson stood in the House of Com- mons the other day and an- The Hill By Richard Cleroux angry crowd, one of whom carried a sign "Judges are the Problem." Harper blamed the Commons Opposition and "so-called" crime experts for the existence of crim- inal gangs on the Opposition in the Commons. (Harper can never resist a cheap shot at crime experts.) Harper continued: "We know we will hear the Opposition par- rot the critics." (Nice verb, Ste- phen.) "They all believe in soft- on-crime policies." Would he go further and remove the two-for-one credit on days spent in jail before trial as the Opposition was asking, the reporter wanted to know. It was not a question Harper chose to answer. "Those who say that tougher pen- alties don't work, don't want them to work," continued Harper. (Harper is like that. He can't help himself.) Actually in the past two years the Opposition in Ottawa has gone along with most of Harper's anti- crime legislation — including this latest legislation, and in some cases further than Harper. On the other hand, the Harper government has failed in the past two years to spend all the money allocated by Parliament to youth crime preven- tion programs. Back in Ottawa an hour later, Liberal justice critic Ujjal Dosanjh said: "Let's be comprehen- sive in dealing with crime. "Let's not make Canadians be- lieve there's a magic solution at one end of the spectrum by pun- ishing people after the fact. Yes, that leads to some deterrence, but we do need some more crime pre- vention, more police, more after- hours programs for youth. "For the past three years, this government has made Canadians believe that all that needs to be done is getting tougher sentences," said Dosanjh. "They are only inter- ested in winning election. [sic]" Back in Vancouver, Harper ex- plained at the news conference: "We got elected because we know the people of Canada want us to take a tougher stand on crime." The crowd around him applauded loudly. LT Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. COMMENT PAGE 7 Far from a 'city of justice' BY LEO ADLER For Law Times drew Carnegie, sits a Holocaust memorial. It bears witness to the fact that, after Poland, Holland lost the greatest percentage of its Jews. Indeed, a few years ago the Dutch ambassador to Canada apolo- gized for his country's embarrassing history and role during the Second World War. The Hague, known as the "City of Peace," is I also known as a "City of Justice." After all, among its various legal entities, it is also the site of the Inter- national Criminal Tribunal for the former Yugosla- via and the International Criminal Court. At first glance all these courts may appear to be related or at least aiming for the same objective: justice in a world filled with injustice. Superficially, this is the type of city that Simon Wiesenthal — who had long championed the use of courts as a means of bringing war crimi- nals, terrorists, bloodthirsty dictators and des- pots to justice — would approve of. A city that strives to put its shame in the open, and to atone for it by "doing good." The truth, though, is that, as far as Israel is con- cerned, this is far from a "City of Justice." In fact, The Hague may very well soon become a city where being Israeli would mean being arrested and tried for war crimes and/or crimes against humanity, if the Palestinian Authority's plea that Israel be inves- tigated and indicted for such offences is accepted by the ICC's prosecutor Luis Moreno-Ocampo. And — depending on what occurs in Kampala in 2010, when the Assembly of States Parties meets to discuss revisions to the Statute of Rome and the possible adoption of the crime of "aggression" into the list of offences — the list of possible charges that Israelis would face could grow. I was recently in The Hague with a group of law students at an annual "mock trial" competition at the ICC. At the time, I also had the opportunity to renew my friendship with one of the leading defence counsel in the field of international criminal law. Leaving aside his personal story, which is a litany of abuse and frustration suffered by defence counsel at the hands of judges, prosecutors, and bureaucrats at both the ICTY and the ICC, he confided that there is, in his words, "a groundswell" to have Israel and Israelis indicted for war crimes and crimes against humanity arising from the recent Gaza conflict. I asked a representative of the ICC's Office of the Prosecutor what the status was of the PA's (not a sig- natory to the statute) request that Israel (also not a member of the ICC) be investigated for crimes. The response was that the OTP first had to determine whether or not the PA was a "state," which is what the Palestinian Justice Minister was claiming. After all, it was argued, the PA had "diplomatic" relations with approximately 60 countries, it was increasingly recognized as a state by the UN and its organs, and the Palestinian leader Mahmoud Abbou, was de- scribed and treated as a president and head of state whenever he visited other countries. The fact that the OTP was even studying the issue of statehood is a troubling harbinger for Israel, regard- less of the tangled and complex legislation that is the included pricing" provisions of the GST legislation (Excise Tax Act sections 364-368) will automatically come into effect. Combined with On- tario tax-included legislation and similar legislation in the other HST provinces, we will move to an environment where "what you see on the price sticker is what you pay." This has huge psychological benefits. Customers no longer grumble about taxes because they're already included in the price. A good current example is gas pump prices: although a significant portion of the price is tax, people don't complain about gas taxes n front of the Peace Palace, the home of the UN's International Court of Justice at The Hague and a gift from the philanthropist An- statute and the questionable legal authority that the statute actually has over either Israel and the PA. In simplistic terms, the problems for Israel can be described as follows: Assuming that the prosecutor deems Palestine to Speaker's Corner be a state, Moreno-Ocampo wouldn't have the juris- diction to investigate, because Palestine isn't a signa- tory to the Rome Statute and thus cannot refer the case to the OTP. Nevertheless, the determination by the prosecutor that Palestine is a "full-status" country would signal international acceptance and recogni- tion of the PA's legal and moral status and effectively act as a Palestinian unilateral declaration of indepen- dence. If the PA then signed and ratified the Treaty of Rome, it would thus be- come a state party and the ICC would have jurisdiction to investigate Israel's actions and charge Israelis based on the PA's self-referral. Even if the OTP finds that the PA doesn't qualify as a state, the prosecutor still has the right to initiate investigations "proprio motu" with respect to crimes within the jurisdic- tion of the ICC, namely, crimes against human- ity and war crimes. His findings, assuming that he considers the allegations to have enough merit to continue the process, would have a huge impact. Although Israel is not a state party of the ICC, the prosecutor would have the right to demand that Israel try those responsible for any of the enumer- ated offences. One can imagine the impossible sit- uation that Israel would find itself in. Whether it accepts or denies responsibility, it will be damned. Furthermore, if Israel ignores the OTP's re- quest or declines to follow it, the ICC, the PA, and numerous other states would have sufficient moral clout to demand that member-states of the ICC, such as Canada, France, the U.K., and others, arrest and charge Israeli "war criminals" under their domestic legislation (the war crimes sections of the Criminal Code in Canada) if they step onto the soil of those countries. In short, despite a rocky start, the ICC is looking for credibility, relevance, a public pro- file, and an international voice: all attributes that make the targeting of Israel so tempting, despite the current legal hurdles. It is time that democracies that are members of the ICC take a hard look at the court, its valid- ity and usefulness. And as the court's composition becomes more and more a mirror of the UN's General Assembly and of Durban II, those na- tions that believe in the rule of law must be pre- pared for next year's review, which would deal not only with the meaning of "crimes of aggression," but could also be asked to recast what constitutes the elements of other offences, such as crimes against humanity and war crimes, thereby creat- ing "defences" to terrorism, while simultaneously honing in on Israel's efforts to defend itself. This scenario is so serious and so realistic that it is no wonder that Israel is establishing an interna- tional criminal defence unit to assist its citizens and political and military leaders. LT Leo Adler is the director of national affairs for Friends of Simon Wiesenthal Center for Holocaust Studies. He also practises criminal law in Toronto at his own firm Adler Bytensky Prutschi and is an adjunct professor at Osgoode Hall Law School. His e-mail address is adler@crimlawcanada.com. the way they do about the GST and PST. Furthermore, for self-employed people who are GST registered and who make business purchases, the input tax credit available on a tax-included price comes as a psychological "windfall." Almost every country in the world other than the U.S. has a value-added tax (= GST). Only in Canada is the GST hated, and that is only because it's visible. In every other jurisdiction, it's pre-included in prices and people don't notice it, even if it's 15 per cent or 20 per cent or 25 per cent. For arcane constitutional reasons, neither the GST nor the PST can be required to be included in prices right now (the GST because the www.lawtimesnews.com required legislation is solely within provin- cial jurisdiction; the PST because it would be an "indirect" tax outside provincial ju- risdiction). Harmonization will solve this problem. Ultimately, harmonization will take both the GST and the PST off the table as a public irritant and source of consumer dissatisfaction. Although prices would appear to rise initially because they'd be tax- included, the public would quickly become happier knowing that the price they see advertised for a product is exactly what they have to pay. David M. Sherman Toronto, Ont.