Law Times

LaW TIMeS • OCTOBeR 5, 2015 Page 7 www.lawtimesnews.com COMMENT Justice policy flying under the radar in election campaign riminal justice policy hasn't usually been a ballot-box is- sue in Canada. Under Liberal and Conservative governments alike, there used to be a broad consensus in favour of an evidence-based, mildly progressive agenda with the details gener- ally left to policy experts from the acad- emy, bar, and judiciary to work out. The punitive turn taken by American legisla- tors in the face of rising crime rates and the crack epidemic in the 1980s largely, although not entirely, passed Canada by. All of that changed in the past de- cade. Just as the American incarceration craze started to run out of ideological momentum (and the cash to fund it), the ascendant Conservatives under Stephen Harper fastened onto the tough-on-crime agenda as a way to get votes and a partisan rallying point. Rhetorically, the strategy has hinged on dividing the world into two opposing groups: criminals who deserve severe treatment and everyone else who needs protection from them. This is an ugly gambit and, by and large, the results haven't been pretty either. Given that criminal justice has played such a leading role in the government's mythology, it's a bit surprising the issue has been largely absent from the election campaign so far. Harper has beat the law- and-order drum periodically on stump, but the subject didn't arise during any of the English-language leaders' debates so far, and neither Tom Mulcair nor Justin Trudeau has chosen to emphasize it as a point of contrast with the Conservatives. That's a shame because the Conserva- tive record on this issue is a worthy target. As I've written here many times before, it has largely been about fear mongering and a disdain for expertise and evidence. That's not to say that the resulting leg- islative product has been uniformly terri- ble as I can think of exactly two instances in which the Harper government has legislated productively in this area. In the interests of fairness and bal- ance, let me point them out. First, in 2011, Parliament enacted a number of helpful case-management provisions recommended by the 2008 report on long and complex trials. For example, a pretrial case-management judge can now make binding eviden- tiary rulings well in advance of trial. This makes practical sense and appears to have had the desired effect of improving trial efficiency in the superior courts. Second, the government recently legis- lated a new offence of distributing an inti- mate image without the subject's consent. The provision addresses the phenomena of cyber bullying and revenge porn that have often been in the news recently. While I don't think the criminal law should intervene in most teenage sexting cases, it may well be appropriate to have an offence to deal with extreme instances in- volving real harm. It's at least preferable to invoking child pornography offences in circumstances to which they were never meant to apply. Unfortunately, for every salutary deci- sion, there have been a dozen pointlessly punitive enactments that have done noth- ing to make people any safer or the system any fairer. The government has brought in longer sentences, less judicial discre- tion, and fewer opportunities for parole or other forms of rehabilitation. A good example is the life means life act, a piece of legislation that Harper says will be a top priority if he wins the election. (The government introduced it earlier this year, but it died with the election call in August. Harper hasn't said why the urgency of that law wasn't apparent to him until nine years into his tenure as prime minister.) "Canadians expect their government to protect them from the worst type of criminals," he said. As I've argued in a previ- ous column, this line relies on an entirely imaginary premise that dangerous murderers are getting parole. When the gov- ernment introduced the bill during the last parliamentary session, both Liberal and NDP members effectively called out its cynical underpinning. As for public safety, Harper likes to take credit for the gen- eral decline in crime rates since 2006. But as criminologist An- thony Doob and others have shown, it's merely the continuation of a downward trend that began before the Conservatives took office. It's not even unique to Can- ada. Research has shown that increased severity of penalties rarely has any dis- cernable effect on the incidence of crime, and there's no reason to think the recent decline is an exception. There are encouraging signs that both of the other parties recognize the folly of the Conservative crime agenda and would take justice policy in a more evidence-driven direction. Both the Lib- erals and NDP spoke out against some of the Tories' more egregious efforts such as the life means life act. How much of the past decade's damage they would seek to reverse is open to question, however. Trudeau has recently said that a Liberal government would consider repealing some of the mandatory minimum sen- tences enacted by the Conservatives but he hasn't said which ones. Likewise, the NDP web site contains an intelligent critique of the financial costs imposed by mounting incarceration under the Tories. It affirms that "Canadi- ans deserve better" but it doesn't propose anything specific. As I'm writing this, nei- ther party has released any kind of com- prehensive platform document on justice issues. We should all hope that changes between now and Oct. 19. The one crime-related item that has garnered some airtime in the campaign is Bill C-51, the anti-terrorism bill passed into law this summer. Among other things, it gives new powers to the Cana- dian Security Intelligence Service, cre- ates a new speech crime of supporting terrorism, and expands the availability of preventive detention in relation to sus- pected terrorists. Professors Kent Roach and Craig Forcese have explained why many of these measures are unnecessary or dangerous. The Liberals have come under justified attack from the NDP for their support of the bill. It's heartening to see this important issue having at least a cameo role in the broader election debate, although it's discouraging to see Donald Trump-worthy demagoguery about one woman's niqab massively overshadow it. Let me end on a positive note. Both of the principal opposition parties have pledged to take action on marijuana decriminalization soon after taking of- fice. Trudeau has actually gone further, supporting not just decriminalization but legalization. The Conservatives have portrayed this growing consensus as a threat to the health and safety of children, providing more proof of their aversion to nuance and evidence when it comes to justice policy. But regardless of how exactly the election- day math works out, it's clear that about two-thirds of Canadians are ready to vote for parties willing to explic- itly embrace a long-overdue turn toward a humane and sensible drug policy, at least in regards to marijuana. Here's hoping that either opposition party, should one of them form the next government, will be willing to take on justice policy more broadly in the same enlightened spirit. LT Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litiga- tion. He's available at mgourlay@hhllp.ca. Clouds hanging over premier's office as police probes languish riminal charges against Sudbury, Ont., Liberal fundraiser Gerry Lougheed Jr. have again stoked controversies and chatter around Queen's Park and brought back the focus on two other long-running Ontario Provincial Police probes into government affairs. The latest police investigation came af- ter Liberals asked candidate Andrew Ol- ivier to step aside in order for a preferred candidate, former federal MP Glenn Thi- beault, to run in February's byelection in Sudbury. Thibeault went on to win the seat for the Liberals. The twist was that Olivier, who uses a wheelchair and has limited dexterity, re- cords his calls and released the conversa- tions with Lougheed and Premier Kathleen Wynne's deputy chief of staff, Pat Sorbara, urging him to step aside. In those conver- sations, it appeared they were speaking for the premier and at several points, Lougheed appears to suggest there are other appoint- ments available to Olivier if he wants to con- tinue his involvement in local politics. The transcripts were widely available online and the charges laid by the OPP are the result of that evidence and presumably interviews with the parties involved. The charges include counselling an of- fence not committed under s. 464 of the Criminal Code and unlawfully inf luencing or negotiating appointments. The latter falls under s. 125 that deals with anyone who "re- ceives, agrees to receive, gives or procures to be given, directly or indirectly, a reward, advantage or benefit of any kind as consid- eration for cooperation, assis- tance or exercise of inf luence to secure the appointment of any person to an office or (b) solicits, recommends or negotiates in any manner with respect to an appointment to or resignation from an office, in expectation of a direct or indirect reward, advantage or benefit." The full force of the law is a prison term not exceeding five years. With the charges stopping at Lougheed, the situation leaves room for Wynne to claim plausible deniability and she certainly seemed happy to learn police wouldn't be charging Sorbara, something that would have brought the scandal closer to her own doorstep. "I never believed my staff did any- thing wrong," she told reporters. "Of course, it's a serious situation and we've taken it seriously." Politically, then, there's a wall for the moment around the incident. Certainly, the Liberals would like to see Lougheed take the fall for the good of the party, although he says he's going to vigorously defend himself and a trial could cast a welcome light on the inner workings of the Wynne's office. The question is who directed the campaign to get Olivier to back away and how much lati- tude and instruction did they give in terms of a quid pro quo? The irony, of course, is everyone knows this is how the parties play the game. But while no one usually notices, the tape tells the story in this case. The situation is also a reminder of the other police investigations faced by the gov- ernment. In December, it will have been a year since the OPP raided Ontario govern- ment offices to seize evidence in relation to the cancellation of two natural gas plants prior to the 2011 election. In February, po- lice went to court to get access to e-mails between former premier Dalton McGuinty and his chief of staff, David Livingston. It was the third search warrant in the case. At issue is whether a third-party con- tractor brought in by Livingston received a password to access hard drives and erase an electronic paper trail connected to the decision around the plants. The investigation seems to be taking a long time. While digital forensic cases are extremely complex, news from that investigation has all but dried up. We're still waiting for the outcome just as we're waiting for the results of the allegations around Ornge air ambulance. The To- ronto Star's dogged pursuit of the story uncovered some questionable dealings in relation to a $4.7-million payment to Ornge founder Dr. Chris Mazza from an Italian company that supplied 12 helicop- ters to the service. Eighteen months ago, those investiga- tions were to wrap up in "a few months," but the Star subsequently reported on dip- lomatic issues with getting OPP detectives cleared by the federal government to go to Italy to interview company executives. Last week, the OPP line was that the in- vestigation is continuing, something that hardly inspires confidence because the mat- ter has dragged on since early 2012. While the officers themselves are profes- sional in their duties, it's hard not to feel that an arm's-length relationship with an outside agency investigating the matter would be more politically correct. LT Ian Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. A Criminal Mind Matthew Gourlay C C Queen's Park Ian Harvey

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