Law Times

Law Times • November 12, 2012 S Government looks at making inmates ever poorer The Hill COMMENT and ended up as a law passed unanimously on the evening of Oct. 31 this year. It wasn't the only strange thing that Now it has made its way to Parliament omething happened to Conserva- tive MP Guy Lauzon in Sudbury, Ont., 30 years ago that has stayed with him all his life. happened at our Parliament on Hallow- een night this year. In fact, it wasn't any stranger than the law putting people in jail for up to 10 years for wearing a Hal- loween mask at a demonstration that turns ugly. Lauzon is no trained seal on the back- benches. He's the national caucus chairman of the Conservative party. So his bill C-350 to make prisoners give back some, if not all, of the money awarded to them in legal actions they might win against the govern- ment had the backing of the rest of his party. "Ladies and gentlemen," Lauzon began last April 26 as he tried to explain his motiva- tion for the new law. "I can speak to the emo- tional distress suff ered by a victim of crime. Someone entered his home in Sudbury " about 30 years ago while he and his wife were sleeping and stole his wallet off his dresser, he explained. "Neither of us woke up. I can't begin to tell you how traumatizing that is when you wake up and realize somebody has invaded your privacy and stolen your money and you weren't even aware of that. Th at was 30 years ago, but I can still remember the emo- tional distress that particularly my wife and my children, but I, too, to a certain extent as well, went through over that incident." Now as an MP only a heart- beat away from a minister's job, Lauzon is in a position to do something about it. Th at' his private legislation under bill C-350 comes in. His new law ensures that any monetary s where award given to an inmate as a result of a successful legal action against the federal government must fi rst go to fulfi l child sup- port and restitution orders; second, to pay off any damages or injuries to victims; third, to debts owed to innocent third parties who acted in good faith; fourth, to cover the court-ordered victim surcharge; fi ſt h, to pay money owing as a result of any other court cases; and fi nally to cover outstanding civil judgments. Aſt er that, the prisoner can collect what- ever remains, if anything. Th e issue is important because off enders s the same rate 30 years earn minimal pay for their work in federal jails. Th e maximum a prisoner can earn was $6.90 a day in 1981. It' canteen items cost $8.49. Today, that same basket costs $61.59. Th at' later. Unlike MPs' rate of pay, the government never adjusted it for infl ation or the cost of living. Back then, a basket of prison Richard Cleroux A bottle of Buckley's cough syrup costs $7.58. Th at's more than a day's wages. Now, under the Conservative government, prisoners must buy non-prescription items such as Tylenol and medicated shampoo through the canteen. new Lauzon law, some will have even less. But nobody knows how many prisoners, Nobody gets rich in jail. And with the if any, win cash awards from the courts for wrongs done to them while behind bars. Th e committee members looking at the issue asked the Justice Department, the Cor- rectional Service of Canada, and anyone else who' Th ey just kept right on talking as they de- bated Lauzon' year. Everyone on the committee felt good about what they were saying. Th ere were fi ne speeches about restitution and about making off enders better people. And now, Lauzon' s legislation on and off for a s legislation heads to get any answers. Nobody knew. But that didn't bother the committee. s supposed to be an expert. Th ey didn't s a 725-per-cent increase. PAGE 7 the Senate for fi nal approval. Lauzon himself was most eloquent in his arguments. "Th ey need to be held accountable for their actions," Lauzon said in reference to off enders. "Th e bill holds them accountable, assisting in their rehabilitation." None of the MPs from any of the major political parties explained how taking mon- ey awarded by the courts away from prison- ers would help their rehabilitation. But Lauzon was fl ying high by now. "Many off enders have never been respon- sible for a day in their lives," he said. Th e New Democrats were there in force the order of priorities for the award money taken away from prisoners. Payment would go to women and children fi rst before reach- ing the inmate' ties who acted in good faith, and then the courts through the victim surcharge, money that actually goes into a government fund for helping out all victims. It seems nobody questioned whether s victims, innocent third par- poor lawyers would get their money from the funds taken away from prisoners. But who cares about lawyers? LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. BY VARTAN MANOUKIAN For Law Times enactment, former Ontario associate chief justice Bert MacKinnon stated in R v. Jamieson that the act was in- tended to establish a speedy, effi cient, and convenient method of dealing with off ences under acts of the legis- lature, regulations, and bylaws while at the same time not compromising the defendant' T he Provincial Off ences Act was enacted in 1979 to mark the distinction between crim- inal and regulatory off ences. Shortly aſt er its and defence. In 1982, the federal government enacted the Charter of Rights and Freedoms. Over the years, numerous court decisions have interpreted many of the Charter' Right to hearing within reasonable period on trial again u SPEAKER'S CORNER s right to make full answer sions and although the majority of decisions have found their genesis within the criminal sphere, the legal prin- ciples espoused have been adopted for proceedings under the regulatory regime. In R. v. CIP Inc., the Supreme Court of Canada held that the Charter applies to quasi-criminal proceedings, including off ences prosecuted under the act. Th e prosecution of a provincial off ences matter is s provi- structural reforms to the act released in 2011, states that in 2009, of the 2.1 million Part I and Part III charges re- ceived by the court, 1.9 million were Part I off ences and 170,000 were Part III matters. Of the Part I proceedings, 1.6 million were off ences under the Highway Traffi c Act or its regulations. In R v. MacMillan, the court stated that "the bulk of the commenced under one of three components: Part I (ma- jority of off ences such as speeding, failure to stop for stop signs, and failure stop for red lights), Part II (parking), and Part III (more serious off ences such as driving while under suspension and driving with no insurance). Th e Law Commission of Ontario, in its fi nal report on off ences that are tried in provincial court are considered by the code, or the prosecutors, to be of lesser gravity. Th ey carry a lesser penalty and are generally based upon a very simple factual background. Furthermore, they are generally closer to the daily life of the community, in the sense that shopliſt ing, house-breaking, and driving off ences and the like are regularly visited upon all com- munities on a daily basis. Th e community is thus entitled to expect that the charges will be dealt with within a time frame that demonstrates eff ective and responsive control of such conduct." In R. v. Andrade and R. v. Hariraj, rulings now subject to a full panel hearing at the Court of Appeal for Ontario, the court had the benefi t of hearing fresh evidence on ap- peal proff ered by the appellant Crown in regards to the administrative practices and policies instituted by the City of Toronto in the setting of trial dates for prosecu- tions under Part I of the act. Th e decision in Andrade and Hariraj comes decades aſt er MacMillan. In R v. Farokh- shadfar, the court stated that the very short timelines make it clear that speedy justice is the hallmark of pro- ceedings under the act. In R v. Kwoon, it was held that any administrative delay in giving the notice of trial could be taken into account in the context of being tried within a reasonable period of time. While some have argued that there' tached to a prosecution under Part I of the act, this does not mean that there is no prejudice. Th e concept of preju- dice encompasses stress and the anxiety resulting from a multitude of factors, including possible disruption of family, social life, and work; legal costs; and the uncer- tainty of the outcome and the sanctions. In R v. Hughes, the court stated that "the increased s no stigma at- on the committee. What seemed to please them most was of the act, the same cannot be said for a large number of proceedings under Part I. In fact, although many off ences prosecuted under Part I are considered minor, they may have serious public safety implications, particularly in the context of the Highway Traffi c Act given that serious in- jury or death can arise from the commission of seemingly minor infractions. Let us not forget that in 2007, the On- tario legislature passed the stunt-driving legislation that defi nes stunt driving as speeding at more than 49 kilo- metres per hour over the posted speed limit. Th e right to be tried within a reasonable period of time that the concept of responsive and pro- portionate regulation should continue to guide reform of the act. While it is easy to understand that the concept of proportionality does not apply to park- ing off ences commenced under Part II should not be compromised in the face of fi nancial or ad- ministrative concerns. Too many participants in the sys- tem have come to accept that delays are inevitable rather than taking action to do something about it. As is oſt en said, a right without a remedy is indeed an empty right. For a large majority of Ontarians, the Ontario Court sanctions for traffi c off ences in terms of high fi nes and demerit points, which can lead to licence suspensions, means that traffi c off ence sentences are very much penal in nature in many cases. As such, the conviction and sen- tencing process calls for a high standard of adjudication." Longer delays also aff ect the administration of justice since ultimately the purpose of sentencing and its impact on the individual may have lost their intended purpose. In addition, delays aff ect the prosecution as they will have an adverse aff ect on witnesses' memory and availability. When one considers that regulatory off ences are even less serious in nature than summary criminal mat- ters, should it then not follow that even shorter timelines should be set and adhered to in bringing Part I matters to trial? Further support for this notion is found when one considers the limitation periods in commencing pro- ceedings under various statutes prosecuted under the Provincial Off ences Act regime: three years under the Compulsory Automobile Insurance Act, two years with conditions under the Environmental Protection Act, and six months under the Highway Traffi c Act. In its fi nal report, the law commission recommended www.lawtimesnews.com of Justice, which includes the provincial off ences courts, is the face of justice. Some have characterized these as junior courts. Th e sheer volume of cases tried in the provincial off ences courts, especially those under the Highway Traffi c Act, provides the public with a unique opportunity to participate in the legal process. When at- tending these courts, members of the public may rightly be alarmed when they hear of the actions of the court administration in causing or contributing to unreason- able delays that result in having charges withdrawn or stayed. Th erefore, it is easy to see how the public could develop disrespect for the process. All too oſt en we hear the provincial off ences court characterize the charge as a simple one. While this may resonate well with the intended purpose of the Provin- cial Off ences Act, the clear line between regulatory and criminal off ences has not emerged despite attempts in academia and jurisprudence over the last 30 years. Until such time as the Supreme Court of Canada revisits its own decision in CIP, there should be no confusion in the minds of those who question the applicability of the Charter to proceedings under Part I of the act and to the junior courts. LT Vartan Manoukian is a licensed paralegal with Solid Line Traffi c Defence in Toronto.

• Cover