OTTAWA - The federal Conservatives are boasting that they're pushing through more private members' bills than any other government in Canadian history — particularly on criminal justice matters.
Public Safety Minister Vic Toews made the claim Wednesday as he announced official government support for yet another tough-on-offenders bill put forward by a Tory backbencher.
"In fact, private member's bills have been used more successfully by private members in this Parliament than I think in the history of Canada," Toews said at a news conference on Parliament Hill.
Looking only at what Toews called "substantive" legislation, "we as a government, probably going back to 2006, have made record numbers of private members' (bills) in co-operation with the individuals who are sponsoring them, because they can get these bills through."
"There are certain timelines and they move much quicker than government legislation does."
And that has critics concerned that the Harper government is doing an end-run around parliamentary oversight, making a mess of the Criminal Code and setting up the legal system for years of constitutional challenges.
In the last month alone the government has announced it will throw its full weight behind three backbench justice bills: two that will restrict parole hearings and one that creates new mandatory minimum sentences for gang recruitment.
According to research compiled by Conservative MP Joy Smith, only 17 backbench MPs have managed to change the Criminal Code since Confederation.
At least half a dozen of those changes have come in the last seven years under the Harper Conservatives, with a handful more on deck.
Smith herself has done it twice — the only MP ever to achieve the feat — both with human trafficking bills.
Half of the top 20 Conservative private members' bills introduced since the 2011 election involve either Criminal Code matters, a crackdown on prisoners or terrorism related measures.
Ned Franks, a professor emeritus at Queen's University and one of the country's pre-eminent experts in parliamentary procedure, said in an interview that some major Canadian legislation, including the abolition of capital punishment and changes to divorce law, "came in large part through private members' bills."
"They can be very useful tools for pushing reform that goes against the general opinion, and they have been," said Franks.
"On the other hand, they can be used as instruments for very narrow causes or — as I think we're seeing now — pushing the government's program farther than the government is prepared to admit to in public."
Franks said the Privy Council Office and the Justice Department scrutinize all government legislation, while private members' bills get the assistance of Commons law clerks.
If the legislation ends up running amok, he said, the government "can always say these are not government bills — they are private members' bills. Surely private members have a right to express their views?"
Justice Department lawyers must sign off on the constitutionality of government legislation, a step that private members' bills bypass.
"They just lack the courage of bringing it themselves," said NDP justice critic Francoise Boivin, a practising lawyer.
Boivin believes several will face Charter challenges, while others are simply clogging the court system — especially those imposing mandatory minimum sentences, which spur offenders to use every legal avenue rather than plead guilty.
"It's just messy and you don't mess with the Criminal Code," said the New Democrat.
But a spokeswoman for Justice Minister Rob Nicholson said that before the government formally backs any private members' bill, "Justice officials review the legislation to ensure it complies with the Constitution."
Julie Di Mambro added that "the reason there are so many justice-related PMBs coming from Conservative members is because Conservative members, unlike their NDP and Liberal counterparts, actually care about crime and victimization."
And that may point to the real, political motivation behind the government's actions, said Liberal MP Sean Casey,
"Quite frankly, I think as much as anything it's a fundraising tool for them," said the Liberal associate justice critic. "I honestly believe that."
Private members' legislation setting stiff penalties for masked protesters, for instance, essentially duplicated existing Criminal Code provisions, said Casey.
"You feed that piece of red meat to the Conservative base and they're sending you in five bucks," said the MP.
"It seems as though everyone has to have their pet project to tweak the Criminal Code."
But the cumulative impact will be significant, cautioned Elizabeth May, the Green party leader.
She said the bills "are designed around very specific situations that come from the pages of the newspaper but don't represent real threats to democracy or public health and safety."
They are "contributing to a transformational shift in our criminal justice system towards one that is petty and punitive."
May cited the example of legislation that would imprison people for up to 10 years for defacing a war monument — a bill she said was sparked by a blind-drunk Canada Day reveller who urinated in the wrong place.
Also on HuffPost:
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)