OUR SYSTEM OF JUSTICE
One of the key elements of any realistic crime prevention strategy must include serious measures to deal with alcohol abuse in Canada, a commitment to early education and recognition of alcohol abuse patterns, and a strong commitment to a national strategy on both alcohol and drug rehabilitation.
No serious discussion of crime reduction in Canada can take place without looking squarely at the problem of alcohol abuse. Alcohol abuse is at the root of the vast majority of assault cases in the country, alcohol is the primary fuel behind domestic violence and far too often the catalyst for violence against Canadian children. And increasingly teens, and teen violence – often leading to murder – is linked with dangerous binge drinking.
Unfortunately no useful statistics are yet kept about the number of times that alcohol abuse plays a part in criminal convictions. Rehabilitation services across the country are an uneven patchwork – in some communities they are non-existent, in others, the wait lists are impossibly long and still too often only available to those who can afford them – essentially making for two-tiered alcohol rehabilitation.
No one is immune from the risk of terrorism. Terrorism, by its nature, targets innocents. Terrorism is an assault on the basic rights of the whole Canadian community. Respect for rights means combating terrorism effectively.
Promoting rights also means respect for the rule of law. Terrorists attack us in order to attack our values. We must preserve these values in the face of these attacks. Terrorist suspects must have their rights respected. Even known, convicted terrorists have basic minimum rights.
The current effort to combat terrorism fails to realize fully either of these principles. We are not now doing enough to combat terrorism effectively. And we are violating the rights of those suspected of terrorism unnecessarily.
Among other things, we should pursue the following:
- The Criminal Code should prohibit incitement to terrorism.
- The preventive arrest and investigative hearing powers should become an integral part of the anti-terrorism legislation after an extensive balanced parliamentary review of the ensemble of our anti-terrorism measures, in contrast to the politicized sham pressure-cooker review recently undertaken by Stephen Harper.
- Security certificates should be subject to review by the Security Intelligence Review Committee.
- Recent legislation proposes to extend the Federal Court power to disclose confidential material to the security-cleared counsel for the accused in security certificate proceedings, where that counsel gives an undertaking not to disclose the confidential material to his/her client, not to copy the material or permit it to be copied, and to destroy the material when it is no longer needed for the proceeding. It is extremely difficult to find the best balance between the rights of the accused to know the case against them, and the concerns of the democratic state to protect legitimate confidential sources. To this end, consideration should be given to allowing the accused’s own counsel to be security-cleared.
- Persons subject to security certificate procedures should then be allowed to submit specific questions to the Minister on the summary of information provided to him or her. If the Minister objects to the answering of the question, the Court could rule on the objection.
- Those detained under the security certificate procedure should be entitled to detention reviews, as are those detained where there is no certificate, after 48 hours, seven days and then every thirty days.
- Canada should not remove anyone to torture or death in another country under any circumstances.
All the antiterrorism legislation, in whatever Act of Parliament it is found, should be subject to a comprehensive sunset clause requiring periodic Parliamentary review and reenactment.
The federal government must strengthen border security and the safety of all Canadians by enhancing the capacity of the Canada Border Services Agency. An additional police presence at the border would greatly improve overall security, and would permit a stronger response to any type of security threat, or potential crime. Increasing the presence of professionally trained police officers at all border crossings is preferable to arming border guards.
Along with increased border security, more consistency in the application of the criminal law is required, particularly where smuggling firearms is concerned.
The illicit flow of small arms and light weapons across borders and especially into conflict zones has been the subject of a UN initiative to conclude a comprehensive, legally-binding arms treaty since 2001.
Despite the July 2006 collapse of the UN meeting to conclude the proposed arms treaty, Canada must continue to be forceful, articulate and coherent in international forums on the urgent need for effective global action to control the lethal small arms trade.
The federal government must establish a truly cross-sectoral strategy to address the root causes of violence, ensuring all relevant government policies are explicitly engaged in pursuit of the goal of creating healthy, safe communities.
The federal government must provide substantial financial support for community initiatives that are broadly aimed at ensuring that youth and women, in particular, have access to much improved economic and social support and opportunities. Funding should be provided for 3 to 4 years with the possibility of renewal, with a review at the end of the 2nd year, to establish the effectiveness and efficiency of all initiatives. Ensuring that schools become effective community hubs must be a top priority.
There can be no doubt that enhancing community safety requires adequate community policing. If we as community members are to take greater interest in and discharge greater mutual responsibility for healthy safe communities, community police are an invaluable resource and critical component of any effective crime prevention strategy. Accordingly, the federal government must assist Canadian municipalities in greatly expanding community policing and ensuring that the community police, as well as the RCMP, better reflect the diverse population of Canada.
But the federal 2008 Budget creation of a $400 million Police Officers Recruitment Fund to be spent by the provinces and territories, while laudable, will not ensure adequate accountability. The Budget documents simply state that “provincial and territorial governments are encouraged to report directly to their residents on the expenditures financed and outcomes achieved with the funding provided through the fund.”
Ontario’s African Canadian Community prepared an Action Plan in 2005 that put forward many valuable initiatives to strengthen communities in Ontario, particularly those struggling with a young population facing few social and economic opportunities and fearing exclusion, something that should be anathema to our deeply-held values of justice, equality and diversity. Rather than being welcomed and supported, the group found it difficult to get federal attention, let alone critical financial support since much of what they had to offer could not be pigeonholed into the conditions for National Crime Prevention Strategy funding.
All Canadians should be concerned that the Harper Conservatives virtually ignore all such initiatives, witness the paltry $20 million for crime prevention in Budget 2006, a further $10 million in Budget 2007 and a limited two year national anti-drug program. And valuable initiatives proposed by the Canadian Council on American-Islamic Relations in June 2006, in the wake of the disturbing revelations about potential terrorist activity among some youth and others in Toronto, are unlikely to be supported as they should.
Canada’s Firearms Program, including the gun registry, must be maintained as an effective crime-fighting tool and a significant contributor to greater community safety. The tragedies at Virginia Tech and Dawson College highlight the importance of gun control.
Among other things:
- The police continue to support the law – they use the system 5000 times each day. It has been used to produce over 3000 affidavits to support criminal prosecutions. Since the Firearms Act came into force, approximately 15,965 firearm licences have been refused.
- Just released data from Statistics Canada show that firearms deaths in Canada were 792 in 2003, down from 1125 in 1995. During this period, 333 fewer people were killed with firearms in 2003 than in 1995. Homicides with rifles and shotguns are down, suicides with firearms are down. Domestic violence with firearms has plummeted (although murders by other means have not).
- The law protects women. Since 1995, murders of women with firearms have gone down 33%. Meanwhile, the number of murders of women without firearms has increased slightly. While fewer than half of Canada’s 2 million gun owners support the legislation, 77% of persons living with firearms owners support it.
- The Supreme Court of Canada unanimously ruled that registration and licensing are linked and that it is not reasonable to have one without the other.
- Most industrialized countries license gun owners and register guns.
The Harper government announcement, and now extension to 2009, of a registration amnesty for hunting rifles and shotguns, effectively guts the Program and is a step backwards and away from greater public safety. Hunting rifles and shot guns are the firearms most commonly used in domestic violence, suicide and police killings.
Furthermore, Canadian taxpayers, having already invested their tax dollars in building the registry now deserve to reap the benefits of this investment. There have certainly been problems with the costs and management of the registry in the past and no one condones the conduct or problematic management and oversight that led to this. However, as the Auditor General confirmed, costs and management of the Firearms Program are now under control.
In the wake of the tragedy at Dawson College, the existing firearms legislation must be extended, among other things, to prohibit the sale of military assault weapons to civilians, and strengthen the controls on hand guns. The legislation already provides that this can be done through order-in-council.
A reverse onus is also appropriate in bail applications for certain crimes, notably, gun-related crimes. Although reverse onus provisions must be used sparingly in a free and democratic society, in certain circumstances in which an offender is likely to reoffend, it is appropriate to require the offender to justify bail. This policy was first endorsed by the Liberal Party in December 2005 in collaboration with the Premier of Ontario and the Mayor of Toronto as part of a comprehensive approach to combat gun violence in Canada.
Judicial and Quasi-Judicial Appointments
We must take steps to enhance the confidence of Canadians in the quality of judicial and quasi-judicial appointments. This will go a long way to ensure ongoing respect and confidence in those who uphold our basic rights and freedoms. The process of federal judicial appointments should be changed to establish a meaningful system of non-partisan advisory committees, as recommended by the Canadian Bar Association (and adopted in part by one of the House of Commons justice committee’s last reports to the last Parliament). These representative advisory committees would present the Justice Minister with a shortlist of the best-qualified candidates, and limit the Minister’s choice to one of the names.
Mr. Harper’s partisan attack on the existing system of screening committees, however much reform is required, takes us backwards!
We must also improve the appointment process for all federal tribunals, notably, the Immigration and Refugee Board and National Parole Board. Meaningful advisory committees such as proposed above in respect of federal judicial appointments might be the preferred option to pursue.
Modernization of Our Court System
The federal government must undertake, with the provincial and territorial governments, a significant modernization of the administration of justice in Canada. Among other things, the government must implement nation-wide computer access to criminal records, and a national registry of stolen property. Crime and criminals do not respect boundaries, and the incredible backlogs and delays in trials etc. are unacceptable. Too often, because of delays, a young offender will be released and then reoffend, drastically reducing the possibility of successful rehabilitation. Plea-bargaining often inappropriately replaces the application of proper sentencing principles and does nothing to advance the goal of enhancing community safety. Until we, as a society, decide to invest sufficient funds in ensuring the efficient functioning of the criminal justice system, we will fail any test of maintaining a free and democratic society. .
All governments must commit themselves to reducing wait times in our criminal justice system across Canada as vigorously as we are attempting to do so in the health care system.
In the Toronto area, the court system is still run in Dickensian style – nothing is computerized; all court orders need to be hand written. And when it comes to enforcement, again the criminal justice system is decades out of date. There are thousands of unexecuted warrants of arrest being held for criminals across the country. In Ontario the Conservative government of Mike Harris terminated a program to modernize the court system so that all information about criminals – all their outstanding charges, their immigration status etc. – would be integrated. The program died – the system remains in the pen and ink era.
The federal government must establish a national legal aid system, in cooperation with the provinces, in order to promote a sustainable, fair and accessible approach to legal aid funding across Canada. We must also support initiatives to promote a stronger pro bono culture in Canadian society. For example, a national pro bono task force or a committee reporting to the Minister of Justice could be established to examine specific ways to enhance the provision of pro bono legal services.
Canada must retain sufficient judicial discretion in the sentencing of criminals.
The law and order agenda of the Harper Conservatives is primarily focused on more rigid sentencing codes of which the necessary consequence is greater numbers of people off the street and into jails. In particular, mandatory sentences for a significantly increasing number of crimes are the flavour of the day.
Yet all the informed, documented, evidence-based literature indicates clearly that more rigid sentencing does not make society safer, and simply diverts valuable resources away from really useful strategies to reduce and prevent crime. In both the United States and Britain, incarceration rates have spiked over the last 10 years, at great cost, but no gain in terms of public safety or justice. Putting people into jail does not change a person’s ways – in Britain, for example, over two-thirds of prisoners released from prison reoffended within 2 years. The United States incarcerates about 700 persons out of 100,000 versus 130 persons in Canada. Over 70% of parolees in the United States reoffend, compared to 12% in Canada.
Stiffer and more rigid sentences alone do not contribute to either greater public safety or greater justice. Mandatory minimum sentences have limited deterrent or denunciatory effect. The core problem is that mandatory minimums take away from the essential flexibility in the justice system which makes the court system in Canada work. The rigidity introduced with mandatory minimums results in greater numbers of persons in jail and the siphoning off of community resources into building more prisons rather than an efficient, equitable and effective justice system. The racial disparities in inmate populations increases significantly, incentives for guilty pleas are removed, and the numbers of charges going to trial increase, causing significant dissatisfaction among judges, defence counsel, prosecutors and police. It is very important for Liberals and others concerned with community safety to express their principled opposition to these Harper initiatives.
We need to create an independent Criminal Justice Council which could advise the government on changes to the Criminal Code whether with respect to new crimes, or penalties and sentencing. This would ensure that Criminal Code amendments were not simply knee-jerk reactions to short-term political pressures, as is the case with the current plethora of minimum mandatory sentences.
Citizen rights must always trump legislative rights and the courts are the best protectors of civil liberties. Canadians should work toward the abolition of the notwithstanding clause in the Charter. If provincial agreement is not immediately forthcoming, then the federal government should proceed to unilaterally suspend the application of the notwithstanding clause to all matters within federal jurisdiction.
The notwithstanding clause in the Charter of Rights and Freedoms was reluctantly inserted into the Charter as a compromise to obtain the necessary provincial agreement to the 1981 constitutional package. The theory behind the legislative override is that Parliament should be able to have the last word on the exercise of citizens’ rights.
Even if this were desirable, which it is not, the legislative override has never been used by the federal government since the inception of the Charter, and with one misguided exception in Saskatchewan, the override has been used only as a political instrument by separatist and quasi-nationalist governments in Quebec.
Section 1 of the Charter, which provides for reasonable limitations on our rights and freedoms that can be demonstrably justifiable in a free and democratic society, has provided more than enough flexibility to uphold legitimate legislative action in a wide range of areas affecting our rights and freedoms. To take just one current example, there should be little doubt that polygamy would be condemned as unacceptable in a free and democratic society such as Canada and as corrosive of social justice and the social fabric of Canadian society. The notwithstanding clause is not needed to uphold the crime of polygamy.
Moreover the notwithstanding clause only applies to fundamental democratic rights, legal rights, and equality rights, and not to other Charter provisions such as mobility rights and language rights. This is illogical and creates an unacceptable hierarchy of rights.