THE BLOG
12/06/2011 10:29 EST | Updated 02/05/2012 05:12 EST

A Sad Day for Criminal Justice

It is clear that as a result of the omnibus crime bill we will have more crime, less justice, skyrocketing costs, fewer rehabilitation opportunities for offenders, less protection and voice for the victims, and less protection for society. This is a sad day for Canadian criminal justice.

In adopting the omnibus crime bill yesterday evening, the government in its comments continued to justify its Safe Streets and Communities Act as if the very title alone validated the legislation. If any questions were raised or critiques offered about the bill, the government repeated the mantra -- as it has throughout this process -- that it had a "mandate" for its enactment. Yet every government and every party has a mandate and obligation for safe streets and safe communities. The real question -- the one that needed to be debated but never was -- is the merits of the means chosen.

For example, we cannot enact unconstitutional legislation and say, "These measures are necessary to protect safe streets and safe communities." Nor can we justify bad policy through the repetition of the mantra about a mandate.

Simply put, legislation has to be examined on the merits. Regrettably, when so examined, the Conservatives' omnibus crime bill will end up giving us more crime, less justice, at greater cost, with fewer rehabilitation opportunities for offenders, less protection and voice for the victims, and less protection for society.

May I summarize some of the principal defects of the omnibus bill as a whole, as well as some defects of the specific bills themselves:

First, the bundling of nine major pieces of legislation into one omnibus bill -- and imposing closure in both the House and in committee deliberations -- did not allow the necessary and differentiated parliamentary discussion and debate, let alone the necessary oversight of the legislation. This alone should have been reason enough to reject the legislation.

Second, even before this legislation was tabled, there was a serious problem of prison overcrowding, with some provinces already reporting prisons at 200 per cent capacity. We know that overcrowding leads to more crime within prisons and more crime outside prisons. The U.S. Supreme Court has found that overcrowding of over 137 per cent can even constitute cruel and unusual punishment. This legislation will only exacerbate the problem in Canada, both as a matter of policy and arguably even as a matter of the constitution. Moreover, in the legislation itself, the requirement that corrections administrators use "the least restrictive measures" has been removed, generating yet another constitutional concern.

Third, the Minister of Justice has an obligation to ensure that legislation comports to the Canadian Charter of Rights and Freedoms. Yet prison overcrowding -- and the attending risk of cruel and unusual punishment -- is not the only constitutional concern in C-10. The expert witness testimony identified a series of constitutionally suspect provisions, including:

  • Severe, excessive, disproportionate, and prejudicial mandatory minimum sentences;
  • Vague and overbroad offences;
  • Undue and arbitrary exercise of executive discretion; and
  • Unconstitutional pre-trial detention issues evoking s. 11 concerns.

When I asked whether the minister would provide assurances that the legislation comported with the Charter, the minister repeated the mantra about the mandate and avoided a response.

Fourth, there remains the important question of the cost of the legislation. Not only have the costs of these nine bills not been disclosed, but in fact the Parliamentary Budget Office costed just one of the crime bills alone when introduced in a previous Parliament at $5 billion. Canadians and Parliament have a right to full disclosure and accountability, and the absence of such disclosure constitutes not only a denial of the public right to know, but a breach of the constitutional responsibility of parliamentarians to oversee the spending power and the public purse.

Fifth, there has been insufficient consultation with the provinces and territories, where these costs will be imposed upon them at the expense of the delivery of government services. This is particularly true in the case of Quebec, whose youth justice model -- a preventive, rehabilitative, and protective one -- is being replaced by a punitive, incarcerative, and ineffective one.

Moreover, the government peremptorily dismissed the Quebec model -- which had brought about the lowest recidivism rate in Canada -- and equally dismissed attempts by Quebec Justice Minister Jean-Marc Fournier to mitigate the damage through a series of proposed amendments, while not providing any evidence supporting their legislative scheme.

Sixth, even in its approach to deterring crime -- something all parties want to address -- the legislation both introduced new mandatory minimums while enhancing existing ones. Yet both Canadian studies and the evidence from other jurisdictions show that these penalties do not deter crime and indeed have a differential and discriminatory impact on vulnerable groups, such as our Aboriginal peoples. As well, these mandatory minimums unduly circumscribe both judicial and prosecutorial discretion, while prejudicing the trial process as a whole. Even U.S. conservatives now regard mandatory minimums as a failed policy that caused the prison population to skyrocket while creating expensive mega-jails that have effectively become factories of crime. Further evidence to that effect was recently confirmed in the report from the U.S. Sentencing Commission released in October.

Seventh, the government rejected all amendments proposed by the opposition, including some 40 amendments I introduced in both Committee and the House, anchored in my experience both as a former Minister of Justice and professor of law. These included amendments seeking to eliminate breaches of the Charter of Rights, check abuses of executive power, protect the rights of victims, provide for treatment -- rather than incarceration -- for mentally ill offenders, and redress the damage of mandatory minimum sentences.

Eighth, amongst my amendments that were summarily rejected were a series of amendments I proposed to the Justice for Victims of Terrorism Act -- legislation I otherwise supported in principle -- and which were intended to give victims of terror a more effective voice and hold terrorist perpetrators to account. After rejecting these amendments in committee, the government tabled them at Report Stage and the Speaker understandably ruled them out of order. As such, the House passed the bill yesterday evening without the necessary amendments, which the government now also recognizes as being desirable.

Ninth, the government did not allow for any discussion of the privacy concerns in the legislation, as reflected in the letter of the Privacy Commissioner to the head of the Justice and Human Rights Committee. As such, the legislation was passed yesterday evening without addressing -- let alone redressing -- these privacy concerns.

Tenth, in the government's rush to adopt the legislation -- and unwillingness to listen to the Opposition -- internal inconsistencies and translation issues between the English and French versions of the legislation remain. It is regrettable that we are adding errors into the Criminal Code simply because the government views haste as being more important than ensuring the quality of our statutes.

Eleventh, the manner in which debate was shut down -- in Parliament, in the legislative committee, and at Report Stage -- and the manner in which amendments were summarily rejected, while those offering them were accused with the arrogant rejoinder that the opposition supports offenders and not victims -- was a standing abuse of Parliament and the democratic process.

Indeed, we were required to inhibit discussion with our constituents, prejudicing members of Parliament from all parties. The Minister of Justice has said that this bill -- and the nine bills contained within it -- were before us in the previous Parliament. Yet, there are many members of the House who were not MPs in previous Parliaments. Why should they not have the right to discuss this legislation? Why should we not solicit their input? Why should they not be able to consult their constituents? Moreover, some of these bills were never debated in the House, in particular the Justice for Victims of Terrorism legislation.

Twelfth, this omnibus bill is about principles and priorities. At its core it is about values. If we spend billions of dollars on building unnecessary prisons while crime is receding and put more people in prison for longer periods of time, then that money cannot be used to invest in a social justice agenda, child care, health care, crime prevention, seniors or social housing.

Given these 12 points -- and others omitted for space -- it is clear that as a result of the omnibus crime bill we will have more crime, less justice, skyrocketing costs, fewer rehabilitation opportunities for offenders, less protection and voice for the victims, and less protection for society. This is a sad day for Canadian criminal justice.

Irwin Cotler is the member of Parliament for Mount Royal. He is a former Minister of Justice and Attorney General of Canada and a professor of Law (Emeritus) at McGill University.

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