Federal New Democrat MP and justice critic Françoise Boivin is warning of growing tensions between the federal government and the courts, following a series of rulings that saw fit to deem the government's tough-on-crime agenda unconstitutional, four years after the legislation was first passed into law.
The Conservatives passed their first omnibus crime Bill C-2 – the Tackling Violent Crime Act – in 2008, effectively making changes to Canada's criminal code in an effort to "protect Canadians against those who commit serious and violent crimes."
In an interview with CBC's Alison Crawford, who was on assignment for CBC Radio's The House, Boivin said the Conservatives are "pitting the judicial against the legislative" and should instead reflect on the message the courts are sending them.
On Tuesday, Ontario Superior Court Judge Alan Bryant struck down a section of the Criminal Code, introduced in 2008, dealing with dangerous offenders.
"A breach of an individual's [charter] rights cannot be justified or condoned in a free and democratic society because the class of affected individuals is small," Bryant concluded.
The Crown had no evidence showing that the reverse onus was necessary to make sure the most dangerous offenders are designated as such, Bryant wrote.
Roland Hill, the man at the centre of this constitutional challenge, was convicted in 2000 of a sexual assault and in 2004 of assault causing bodily harm.
In the case now before the courts, Hill pleaded guilty to two counts of what Bryant called a "horrible" assault on a "defenceless young woman."
Bryant found that the reverse onus violates the charter, but that the Crown proved Hill was a dangerous offender through the traditional method.
But Carissima Mathen, an associate professor of law at the University of Ottawa, told Crawford the government should have seen this coming.
"Any time you use a reverse onus, you are fundamentally changing the normal way that the criminal law works where the government has to prove every part of a crime beyond a reasonable doubt. And a reverse onus gets away from that fundamental principle," Mathen said.
The dangerous offender reverse onus was part of the government's 2008 bill, which increased penalties in a number of areas, including gun control, drunk driving and the age of consent.
Mandatory minimum sentences
Kerry-Lynne Findlay, the parliamentary secretary to the Minister of Justice, told Crawford there was good reason for bringing in those changes which included mandatory minimum sentences.
"There is quite a difference in the sentencing outcomes, depending on the province or territory the particular case may happen to have been heard in. The other reason is to send a strong message that we are standing up for victims of crime and the most vulnerable in society and to make criminals more accountable for their actions," Findlay said.
But James Chadwick, a retired Superior Court judge, told Crawford sentencing is one of, if not the hardest aspects of being a judge.
When asked if mandatory minimum sentences would make a judge's job easier, Chadwick said "well, I guess it makes it easier for throwing the key away."
The ruling comes on the heels of two other instances during which judges in Ontario have struck down two mandatory minimum firearm penalties from the same "Tackling Violent Crime Act" omnibus law.
In July, an Ontario Court judge struck down a three-year firearm trafficking mandatory minimum sentence in the case of a crack dealer who offered to sell an undercover police officer a gun.
Justice Paul Bellefontaine ruled that Christopher Lewis should not have to face the mandatory minimum sentence of three years in jail for firearms trafficking.
He gave Lewis one year in jail for the firearms offence — although he also gave him an extra two years for other drug-related offences.
In February, Ontario Superior Court Judge Anne Molloy struck down a three-year minimum sentence for a first offence of illegally possessing a loaded gun.
At the centre of the case was Leroy Smickle, who was caught taking a webcam photo of himself while holding a gun.
Jeff Hershberg, a criminal lawyer, who represented Smickle, told Crawford his client "has no criminal record, a good work history, and is really a contributing member of society."
All eyes will now be on Bill C-10, the second omnibus crime bill the Conservatives passed in March, which included new mandatory minimum sentences for drug offences.
"I would be absolutely shocked if sometime in the very near future we do not see a challenge and a striking down of the mandatory minimums for the few marijuana plants that may be found in someone's home," said Hershberg.
All cases are expected to be appealed to higher courts.
15 Things Critics Fear In The Tory Crime Bill
Opposition parties, professionals working within the corrections and justice systems, the Canadian Bar Association and various other interest groups have raised wide-ranging concerns about the <a href="http://www.huffingtonpost.ca/news/omnibus-crime-bill" target="_hplink">omnibus crime bill</a>. Here is an overview of some of their objections. (CP/Alamy)
15. Harsher Sentences For Young Offenders
Changes to the Youth Criminal Justice Act will impose tougher sentences for violent and repeat young offenders, make it easier to keep such offenders in custody prior to trial and expand the definition of what is considered a "violent offence" to include "creating a substantial likelihood of causing bodily harm" rather than just causing, attempting to cause or threatening to cause bodily harm. The new legislation will also require the Crown to consider adult sentences for offenders convicted of "serious violent offences" and require judges to consider lifting the publication ban on names of offenders convicted of "violent offences" even when they have been given youth sentences. Some of the concerns around these provisions raised by some of the professionals who work with young offenders include: (Alamy)
14. Young Offenders - Naming Names
The publication of names of some young offenders will unjustly stigmatize them for life. Quebec has asked that provinces be allowed to opt out of this provision. (Getty)
13. Young Offenders - Stiffer Sentences
Stiffer, longer sentences will turn young offenders into hardened criminals and undermine any potential for rehabilitation. (Alamy)
12. Young Offenders - Minorities Take The Brunt
As with other parts of the crime bill, critics says harsher sentencing rules and increased emphasis on incarceration will <a href="http://www.huffingtonpost.ca/2012/02/20/bill-c-10-omnibus-crime_n_1289536.html?ref=omnibus-crime-bill" target="_hplink">disproportionately affect aboriginal</a> and black Canadians, who are already over-represented in the criminal justice system. (Alamy)
11. Young Offenders - Forget Rehabilitation
The changes shift the emphasis of the Act from rehabilitation to "protection of society," which critics say will put the focus on punishing young offenders rather than steering them away from a life of crime. <a href="http://www.huffingtonpost.ca/2011/11/22/crime-bill-quebec-canada_n_1107717.html?ref=omnibus-crime-bill" target="_hplink">Quebec, in particular, which prides itself on the success of the rehabilitative aspects of its youth justice system, has argued for stronger language prioritizing rehabilitation</a>. (Alamy)
10. Fewer Conditional Sentences
The legislation will eliminate conditional sentences, those served in the community or under house arrest, for a range of crimes, including sexual assault, manslaughter, arson, drug trafficking, kidnapping and fraud or theft over $5,000. It will also eliminate double credit for time already served. Critics say these changes will: (Getty)
9. Fewer Conditional Sentences - Spike Costs
Cost the federal and provincial justice and corrections systems millions of additional dollars a year. The parliamentary budget officer, <a href="http://www.huffingtonpost.ca/2012/02/28/omnibus-crime-bill-costs-conditional-sentences_n_1306528.html?ref=omnibus-crime-bill" target="_hplink">Kevin Page, has estimated that the average cost per offender will rise from approximately $2,600 to $41,000</a> as a consequence of the elimination of conditional sentences. (Alamy)
8. Fewer Conditional Sentences - More Trials And Hearings
- Lead to more trials as those accused of crimes will be less likely to plead guilty if they know there is no chance they will get a conditional sentence and will be more likely to take their chances on a trial. Some have predicted this will lead to greater backlogs in an already backlogged court system. - Result in more parole hearings. Page's analysis predicted that with the increase in the number of incarcerations, there will be more offenders coming up for parole, which will increase costs for federal and provincial parole review boards. A single review by the Parole Board of Canada costs an estimated $4,289, Page estimated. (Alamy)
7. Mandatory Minimums
<a href="http://www.huffingtonpost.ca/2012/02/22/bill-c-10-drugs-mandatory-minimums-omnibus_n_1292894.html?ref=omnibus-crime-bill" target="_hplink">By far the most criticized aspect of the bill is the introduction of mandatory jail sentences for certain crimes, including drug trafficking, sex crimes, child exploitation and some violent offences</a>. Opponents of the measures have argued that this type of sentencing has been tried in other jurisdictions, most notably in the U.S., and has created more problems than it has solved. Critics say that coupled with other changes in the bill, such as increases in the maximum sentences handed down to some drug offenders and sexual predators and elimination of conditional sentences in some cases, mandatory minimums will burden Canada's prison and court systems in ways that are unfeasible, untenable and have little benefit. In particular, they argue that mandatory minimum sentences will: (Jupiter Images)
6. Mandatory Minimums - Higher Costs
Increase the costs of prosecuting and incarcerating offenders and leave fewer funds for rehabilitation programs. (Alamy)
5. Mandatory Minimums - Overcrowding
Lead to overcrowding in prisons. (Alamy)
4. Mandatory Minimums - Make Judges Less Powerful
- Remove judges' discretion to tailor sentences to the specifics of a particular case and offender and force them to apply blanket, one-size-fits-all sentences regardless of circumstances - Limit the use of alternate sentencing measures of the type currently applied to aboriginal offenders. (Alamy)
3. Mandatory Minimums - Over-Punish Drug Offenders
<a href="http://www.huffingtonpost.ca/2012/03/02/omnibus-crime-bill-pierre-claude-nolin_n_1316481.html?ref=omnibus-crime-bill" target="_hplink">Disproportionately punish small-time drug offenders and have limited effect on the drug producers, organized crime bosses and serious drug traffickers</a> the government says it wants to target. (Alamy)
2. Mandatory Minimums - What's The Point?
Have little rehabilitative effect on offenders and rather leave them more, not less, likely to re-offend. <a href="http://www.huffingtonpost.ca/2011/11/27/tough-on-crime-conservatives-doubt-tough-sentences_n_1115012.html?ref=omnibus-crime-bill">Critics point to numerous studies showing harsher incarceration laws do not have a deterrent effect on criminals or lower crime rates</a>. (Alamy)
1. Mandatory Minimums - What Charter?
Violate provisions of the Charter of Rights and Freedoms and open up the government to legal challenges on grounds that the sentencing rules violate certain rights that offenders have under the Charter, such as the right to liberty, the right not to be subjected to cruel and unusual punishment and the right to equal protection and benefit of the law. (Alamy)