OTTAWA - Justice Minister Rob Nicholson is maintaining his seemingly inexhaustible attacks against what the Conservatives perceive as weaknesses in Canada’s justice system with new crime bills this fall on top of nine pieces of legislation that remained when Parliament adjourned for the summer.
The agenda continues the ambitious pace Nicholson has maintained since he assumed the post in January 2007.
It includes new legislation to increase penalties for sexual offences against children and an as-yet undefined “additional action” to address the “disturbing” number of unsolved cases of murdered and missing aboriginal women, according to Nicholson’s press secretary Pamela Stephens.
But defence lawyers and opposition critics insist many of the tough changes he has brought in so far, including more mandatory minimum sentences and other moves that will increase incarceration rates and force the government to build new prisons, have taken the country in the wrong direction.
At the same time, an NDP MP says the government can expect trouble on one of Nicholson’s signature legislative changes: significant amendments to toughen up the Youth Criminal Justice Act that were still before the House of Commons justice committee when Parliament adjourned nearly 12 weeks ago.
“Complex problems are not solved by simple solutions,” says Ottawa defence lawyer Norm Boxall, a vice president of the Criminal Lawyers’ Association.
“For sure, there are issues of social matters, of crime, these are issues that we need to address, but the simple solution that suddenly we’re going to be tough on it to make it go away doesn’t work.”
Joseph Di Luca, another CLA vice president who chairs its legislation committee, agrees. He notes that in the United States, where increased incarceration rates and minimum sentences have been the norm for more than a decade, crime has continued to rise at a higher rate than in Canada.
Nicholson intends to table, over and above his bill to hike penalties for sexual crimes against children and his measure aimed at the unsolved murders and disappearances of hundreds of aboriginal women, legislation to give police “investigative powers for the 21st century,” along with changes to reduce the number of mega-trials in organized crime prosecutions.
Those moves were news to Joe Comartin, the Windsor, Ont., NDP MP and lawyer who has been one of Nicholson’s toughest opponents as the array of tough-on-crime bills has taken its stormy path through the Commons and Senate. Comartin tells Law Times he had heard nothing about them prior to their disclosure through Nicholson’s press secretary last week.
He suspects that, other than the bid to deal with the puzzling and tragic mystery of missing and murdered aboriginal women over the past decade, the other changes are among issues that have arisen at the justice committee over the last year.
“I’m not sure how ambitious this is. It sounds like a lot of stuff we’ve already covered,” says Comartin, speculating that the legislation targeting drawn-out trials involved in large organized crime investigations may deal with difficulties complying with disclosure requirements as police accumulate massive volumes of evidence through electronic wiretaps and the related data files created through modern information technology.
Comartin says Liberal MPs, who supported the government during parliamentary votes earlier this year on many of the crime bills to avoid an election the party was unprepared to fight, have privately indicated they may take a stand on the amendments dealing with youth crime.
The bill establishes deterrence and denunciation as sentencing principles similar to the adult criminal justice system and requires the Crown to consider the possibility of seeking an adult sentence for offenders as young as 14 who have been convicted of murder, attempted murder, manslaughter or aggravated sexual assault.
“The Liberals are making noises that they’re going to stand up,” Comartin says. “There has been some discussion amongst all three [opposition parties] that maybe the best thing would be to just defeat it and tell the government to go back and start all over again.”
The bills remaining from the winter and spring sittings include legislation that would eliminate conditional sentences, or house arrest, for serious crimes; remove the so-called faint-hope clause that allows application for early parole during life sentences for murder or second-degree murder; introduce mandatory minimums for serious drug crimes; bring in a requirement for Internet service providers to report child pornography; and enact tougher sentences for auto theft.
“I think we are witnessing an unfortunate shift in criminal justice philosophy,” Di Luca says. “Instead of learning the valuable lessons from our U.S. counterparts, we are marching down the same path they took some 20-plus years ago when they embarked on a fruitless war on drugs.
Instead of making a noticeable dent in the drug trade and related crimes, they ended up with a nation of people in jail and an increasing crime rate.”
The Canadian Bar Association declined to comment on Nicholson’s fall plans, but the organization has already added its voice in opposition to a government measure that could spell trouble for Prime Minister Stephen Harper once Parliament resumes: the cancellation of the mandatory long form of the 2011 national census.
In a July letter to Industry Minister Tony Clement, Kevin Carroll, the CBA’s president at the time, said the association has “serious concerns” about the move because census data is used extensively in personal injury claims.
“The information is particularly important in major loss cases involving injured children and is the source of much of the consensus of opinion among experts on quantum loss of future earnings.”
