With the suspension of Parliament, the good dies with the bad. Some legal observers are lamenting the loss of some much-anticipated legislation. Others are breathing sighs of relief, however, that among the dead bills are many deserving casualties.
Prime Minister Stephen Harper’s government has prorogued Parliament with 37 bills yet to be passed, more than a dozen of which are criminal justice laws introduced as part of the Tories’ tough-on-crime agenda.
In criminal justice circles, opposition to those bills was nearly universal, says William Trudell, chairman of the Canadian Council of Criminal Defence Lawyers.
“From Crown counsel to police officers to corrections workers to social workers to judges to defence counsel, [all] feel that these tough-on-crime measures are sowing the seeds for the implosion of the system,” Trudell says.
Suspension of the House of Commons means all government-sponsored bills short of Royal assent die on the order paper.
The government may reintroduce outstanding bills in the next legislative session, but those at various stages in the Senate must return to the beginning of the process in the upper chamber.
The Tories said they would reintroduce their consumer safety bill and anti-drug law in their original form. Both pieces of legislation resulted in an impasse between the government and the Senate over proposed amendments.
But the future of many other bills remains uncertain.
Even if the Harper government reintroduces them all, justice officials and observers hope to see some sober second thought, Trudell says.
“The fact that they get reintroduced means people will take a second look at them.”
While the bills sent the message to the electorate that the government was cracking down on crime, the proposals don’t reflect the realities of the criminal justice system, Trudell argues.
Bills such as the one to repeal the faint-hope clause merely exploited misconceptions about crime and punishment in Canada, he says. “That was not a bill that was necessary.”
He notes anecdotal evidence was promoted that murderers were walking the streets, an assertion that ignored the multi-stage process involving screening by a judge, jury, and the parole board before early release is granted under a faint-hope application.
Meanwhile, those members of Parliament who knew the bills, while effective at bolstering punishments, did little to actually address crime, censored themselves for fear of being branded soft on criminals, Trudell says.
“When the new session comes in, we can maybe throw that out the window right away,” he says. “You can’t sit on your hands just because you’re afraid of getting beat at the polls.”
As a result, he’s calling for a more principled examination of justice measures. “Surely, the politicization of the criminal justice system has to stop.”
A common complaint about most of Harper’s crime bills is the restriction of judicial discretion, another reason prorogation has prompted some palpable relief, according to Trudell.
Among the scuttled legislation is the proposed end to conditional sentences for a number of crimes, including breaking and entering, arson, and theft over $5,000.
Also dead is the bill proposing mandatory minimum sentences for drug crimes.
“Good heavens. Mandatory minimums don’t work,” Trudell says. “The reverberations through the system, they make everyone’s jobs more difficult.”
Crown prosecutors would have had less leeway in recommending appropriate punishments, and judges would have lost discretion in handing down sentences, he says.
Before the parliamentary session came to a halt, however, the Senate passed the government’s organized-crime legislation as well as the bill ending two-for-one credit for pretrial custody, which garnered widespread criticism.
Opponents said government claims that inmates often deliberately delay their own proceedings in order to earn double credit are simply not true.
“We’re increasing the lines to jails, and now they’re talking about bigger jails,” Trudell says.
Meanwhile, Toronto lawyer Paul Alexander told a House of Commons committee last year that reducing pretrial credit would worsen prison conditions.
“What I will say about this bill is that at its best, it is misguided; at its worst, it is cynical and cruel,” Alexander said. “This is a piece of legislation designed to solve a problem which, to my knowledge, does not exist anywhere other than the popular imagination.”
On the other hand, along with controversial bills, prorogation also nullified legislation that had widespread support.
Bill C-27, also known as the anti-spam bill, included measures to curb electronic identity theft, phishing scams, and the spread of malicious spyware.
“The bill was obviously an important bill,” says Barry Sookman, an intellectual property lawyer with McCarthy Tétrault LLP. “It’s regrettable that it died.”
Sookman had previously voiced concerns on behalf of the business community that the bill as written could prohibit content providers from installing small applications or HTML code required to surf a web site unless first asking for consent.
But Sookman says most of his concerns were addressed at a House of Commons committee. With prorogation, however, he says Canada still lacks the legislation needed to bring it in line with other countries.
“Hopefully, it’s just a bump in the road and [the bill] will be brought back with the remaining problems fixed."
Meanwhile, the chorus taking a stand against the most recent prorogation grows.
Many Tory opponents, as well as some of the country’s foremost constitutional experts, have denounced the suspension of Parliament.
A Facebook page of angry Canadians has a steadily building membership, and protests are scheduled for several cities, including Toronto, later this month.
