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Irwin Cotler


Changes to the Criminal Code: Now Easy as 1, 2, 3

Posted: 10/11/2012 8:31 am

This coming week, Parliament will vote on my amendments to Bill C-299, Conservative legislation that would impose a mandatory minimum sentence of five years on people who kidnap children. There is, of course, no question that the kidnapping of children is a reprehensible crime, and that our justice system must have the tools to deal severely with anyone found guilty of such an offence. Indeed, it would seem as though this would be just the kind of issue on which members of all parties could collaborate in good faith, together devising a carefully considered strategy to protect Canadian children from those who would do them harm.

Instead, however, this bill has become a prime example of how excessive haste -- and an uncooperative attitude toward parliamentary opposition -- can make for bad law and bad policy. Moreover, it is set to become a situation in which the Conservatives will -- yet again -- vote against amendments that strengthen their legislation simply because they come from the opposition.

The bill in question was put forward last year by British Columbia MP David Wilks in the weeks following the kidnapping and safe return of Kienan Hebert, a child in his riding.

It is understandable that Members of Parliament should want to react quickly to tragic events. However, when changes to the Criminal Code are hurried to the floor of the House of Commons in response to an item in the news, there is an increased risk that important aspects of the bill may be glossed over in the rush to judgement. The need for thorough analysis and revision by parliamentarians therefore becomes even more vital than usual if we are to avoid enacting legislation that has unintended consequences.

Wilks noted when introducing his bill that the intention was "to have the mandatory prison sentence apply only in cases where a stranger commits the crime." Yet, the bill he presented treated all offenders equally; it made no distinction between strangers and, for instance, parents engaged in a custody dispute.

While Wilks acknowledged that the bill did not do what he intended -- and offered to make changes at committee -- the Conservatives on the Justice Committee did not present the amending language until the final meeting dedicated to the study of the bill. This denied opposition members the opportunity for in-depth study of the new legal language, and we were forced to look it over and vote on it in one sitting.

There were important questions for the committee to consider. The new wording created an exemption from the mandatory minimum for "a parent, guardian, or person having the lawful care or charge" of the victim, but those terms may be ambiguous in a court of law. Are step-parents covered if they do not have legal custody? Are aunts and uncles? What about sperm donors?

A representative of the Justice Department was present at that final committee meeting, and she was able to speak briefly to some of our concerns, but her expertise was in criminal law. A family law expert would have been in a position to offer important testimony on how the new language could be refined and on how the bill is likely to be interpreted by the courts, but the Conservative committee members rejected the opposition's request for more time. It should be deeply troubling to Canadians that the laws governing our criminal justice system are being altered quite so nonchalantly.

In an effort to make what improvements I could at this late stage of the process, I have offered two sub-amendments in the House. The first would clarify the exemption to ensure that those in a "substantially similar position" -- such as a relative who may have raised the child but does not have legal status with respect to him or her -- are not subject to the mandatory minimum.

The second would specify that parents stripped of all parental rights are subject to it -- this way, a parent who has been stripped of custody for abuse or neglect cannot claim an exemption because of loose statutory language. Both of these would bring the legislation more in line with Wilks's original intent, but he has summarily rejected them, saying, "Let us get beyond the stick-handling of legal jargon and pass the bill." This statement reveals a disturbing disregard for the duty of parliamentarians to fully consider legislative language before it becomes law.

Clearly, stark differences in legislative philosophy, principle, and policy exist between, on the one hand, a government that pursues a punishment and incarceration approach, and on the other, those of us who affirm one anchored in prevention and rehabilitation; between a government that relies on mandatory minimums that limit judicial discretion, and on the other, those of us who acknowledge the many studies -- in Canada and elsewhere -- that show mandatory minimums to be ineffective, prejudicial and counterproductive.

In fact, mandatory minimums do not remove discretion from the legal process; they simply transfer it from judges to police officers and prosecutors, who may decline to prosecute or charge for a lesser offence, and whose decisions are neither public nor transparent nor subject to review -- thereby undermining, yet again, the government's own legislative agenda. As well, even without a minimum in place, most kidnapping sentences imposed by the courts -- as former Supreme Court Justice John Major testified in committee -- have been serious and substantive, and specifically tailored to the facts and circumstances of the offence and the offender.

But surely, despite our differences on principle and policy -- on which we can respectfully disagree -- we can at least agree that any proposed changes to the Criminal Code should be the object of serious scrutiny and debate. Otherwise, Members of Parliament cannot be sure of the effects of the legislation on which we are voting.

I would prefer that my own amendments be the subject of more thorough examination, and I look forward to having them further studied by the Senate should they pass in the House. Clearly, the changes I have recommended would not have been necessary had the Government's approach been consistently responsive and collaborative. Regrettably, its approach has too often been just the opposite, and the resulting law -- and the Canadian justice system -- will be poorer for it.

I hope the Conservatives will reverse course and support my amendments, which will strengthen the principle and effect of their own bill.

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  • 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)