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Marijuana bill another example of Liberals’ broken promises

The Liberals made a lot of promises during the 2015 election. Who could blame them? A third-place party needs to shoot for the moon. But as electoral reform, lower small business taxes, stock option loopholes, modest deficits and on and on demonstrate, election promises are made to be broken. So perhaps it should not be a surprise that the Grits are on their way to breaking a few more campaign pledges — a promise to base policy on evidence and a promise to improve parliamentary committees. The evidence of these latest campaign reversals can be found in another half-kept promise — legal marijuana. When it comes to legalization of marijuana, it seems that the Liberals will keep their promise — sort of. They pledged to legalize marijuana because it “traps too many Canadians in the criminal justice system,” because illegal weed funds criminal organizations and because legal but regulated cannabis better keeps drugs away from our children. So, in 2015, the Liberals promised to “remove marijuana consumption and incidental possession from the Criminal Code.” But the Liberal’s proposed cannabis bill actually doesn’t do any of those things very well. Sure, the new legislation does legalize some marijuana — some of the time, under some circumstances — but it does not “remove marijuana consumption and possession from the Criminal Code.” In reality, the new bill is an unnecessarily complex piece of legislation that leaves intact the criminalization of marijuana in many circumstances. An adult who possesses more than 30 grams of marijuana in public is a criminal. A youth who possesses more than five grams of marijuana is a criminal. An 18-year-old who... read more

Not all Marijuana will be legal

The irrationality of the Liberal government’s legislation to legalize marijuana was brought into sharp focus last week as bill C-45 made its way through the health committee (check out my testimony here). The problem is obvious — the war on drugs has been an abject failure. Criminalization of marijuana abdicates control over the production, distribution and regulation of cannabis to criminal organizations. Yes, your dealer may be a middle-class, suburban stay-at-home dad, but as a criminal lawyer, I have seen the bloodshed brought about by illegal weed. The bottom line is that the criminalization of marijuana kills. But this is not all it does. The criminalization of marijuana is a drain on court resources and diverts law enforcement resources away from truly harmful activities. The prosecution of marijuana offences unduly stigmatizes otherwise law-abiding citizens through the imposition of a criminal record. But it gets worse. The criminalization of marijuana disproportionally impacts individuals who are young, marginalized, members of over-policed communities or are racialized. It is these groups that are more likely to be targeted and arrested by the police and prosecuted by the federal government’s lawyers. Most of the clients I have represented over the past decade charged with simple possession of marijuana have been poor, from a minority group or lived in an area with a heavy police presence. In our drug laws are echoes of racism and bias. Bill C-45 may be a grudging step in the right direction, but it is no cure to the ills inflicted through marijuana criminalization. The bill is an unnecessarily complex piece of legislation that leaves intact the criminalization of marijuana in... read more

Justice by the polls

Canadians were told that reforming the justice system was a priority for Jody Wilson-Raybould and the Trudeau government. We were told evidence-based policy is the new order of business when it comes to crime and punishment. Both Trudeau and Wilson-Raybould identified the use of mandatory minimum sentences and constraints on judicial discretion as priority areas for reform. And then there was no action. But last year at the Criminal Lawyers’ Associations annual conference, Wilson-Raybould was crystal clear in saying that restoring judicial discretion was an issue of upmost importance — she told the crowd that justice couldn’t be a one-size-fits-all proposition. Specifically, she said that mandatory minimum sentences were a priority for change and promised that reforms were coming. And then, again, there was no action on minimum sentences. Heck, Wilson-Raybold even introduced legislation to repeal laws that the Supreme Court of Canada has ruled are unconstitutional — except for the minimum sentences. So what can possibly explain the government’s lack of action on minimum sentences? Well, it seems that the government’s resolve on evidence-based decision-making and progressive justice policy may begin and end with public opinion. Last week Jessica Prince, senior policy advisor to the minister of Justice, tweeted a link out to an EKOS survey commissioned by the Department of Justice. The survey seeks the public’s feedback on the use and effectiveness of mandatory minimum sentences. Forget the EKOS questions. The question we should be asking is why? Let’s be frank. The public’s opinion on minimum sentences is irrelevant if the goal is genuinely to enact policy based on evidence. Just like the public’s opinion on whether global warming is... read more

The Jury System

Criminal trials are high stakes affairs. Unlike civil disputes criminal trials are not merely monetary. In criminal trials the defendants’ liberty and freedom hang in the balance. To lose a serious criminal trial means jail — confinement in a dirty, violent, and punitive Dickensian hellhole. Monetary damages can be reversed, property losses can be compensated but a wrongful incarceration is a scar that never heals. So when it comes to criminal trials — especially involving serious allegations — we’d better get it right. So, for the most serious criminal matters who does our justice system trust to get it right? They are largely anonymous. They lack any legal background or formal training. They deliberate in secret and they are not required to give any reasons for their decision. Welcome to the venerable jury system. The jury system is one of the historic pillars of the common law system. Criticizing the jury system is also a pillar of the common law system. Mark Twain wrote in an 1873 letter to the New York Tribune, “The humorist who invented trial by jury played a colossal practical joke upon the world, but since we have the system we ought to try and respect it. A thing which is not thoroughly easy to do, when we reflect that by command of the law a criminal juror must be an intellectual vacuum, attached to a melting heart and perfectly macaronian bowels of compassion.” Twain may have been right. It may be time to re-evaluate the jury system. Let’s start with how juries are selected. In a typical first-degree murder trial — which must be... read more

THE Ghomeshi Rules: Bill C-51 and the Unprecedented Case of Reverse Disclosure

Earlier this month, Justice Minister Jody Wilson-Raybould introduced legislation to modernize the Criminal Code. The new legislation, Bill C-51, would repeal sections of the Criminal Code that have been found unconstitutional, remove outdated offences and bring written sexual assault law up to speed with court decisions. At least, this is what made it into the headlines. Vice reported that “Updates to Canada’s criminal law will legalize duels and permit pretending to practise witchcraft,” CTV’s headline read “Government bringing sexual assault law up to speed with the courts, times” and the headline in Metro News read “Duels, ‘crime comics’ and witchcraft: The battiest laws being scrubbed from the Criminal Code.” So, funny, old-timey laws that have not been relevant since the turn of the century will be removed from the Criminal Code, sexual assault laws will be updated to clarify the well-established common law principle that an unconscious person cannot consent to sex and clearly unconstitutional laws will be scrubbed from the books. This is all good even if it is not the ambitious reforms our criminal justice system needs. But Wilson-Raybould should not be patting herself on the back for grabbing the lowest of the low-hanging justice fruit. This is especially true given that not all the unconstitutional laws will be repealed. Take mandatory minimum sentencing, for example. In 2015, the Supreme Court found some minimum sentences violated the Charter and struck down the mandatory sentencing provisions. Wilson-Raybould’s new bill was silent on those unconstitutional laws. I suppose unconstitutional sentencing laws for gun crimes are less funny and more politically problematic than crime comics and witchcraft. Beyond the humour and incoherence of the new legislation... read more

Judicial Poetry

Judges have a duty to provide reasons for their decisions. This would seem to be self-evident. But it wasn’t — at least not until 2002 when the Supreme Court of Canada was called upon to review the sufficiency of the trial judge’s reasons for convicting a young man named Colin Sheppard. At trial Sheppard had been convicted of stealing two windows. There was no physical evidence linking him to the theft —- no fingerprints, no DNA, nor any video surveillance. Nothing. The only evidence of guilt came from his estranged girlfriend — who went to the police two days after her “tempestuous” relationship with Sheppard had ended. She said that he had confessed to her and told her he had stolen the windows. Sheppard testified and denied he committed any crime. The case was laughably weak. But Sheppard was convicted. The trial judge could have tweeted his reasons: “Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged.” Seriously — that is all of it — 36 words. The Supreme Court, in R. v. Sheppard 2002 SCC 26, overturned the conviction saying that Sheppard “still does not understand the basis of his conviction and neither do we.” It is really about common sense. The importance of reasons for judgment cannot be understated. Detailed reasons are the main way for a court to communicate with the parties to the litigation. At the end of a case there should be no doubt why and how a... read more

The state of our jails

It has been two years since the United Nations adopted crucial revisions to the international standards on the treatment of prisoners. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) forcefully called on member states to respect prisoners’ inherent dignity, allow access to medical care, protect vulnerable inmates and ensure access to legal representation. Importantly, the Mandela Rules recognize that rehabilitation and reintegration of persons deprived of their liberty should be one of the most essential aims of any criminal justice system. Canada was a co-sponsor of the Mandela resolution. After his release from prison in 1990, Mandela observed, “No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones.” As a criminal defence lawyer, I have been inside our jails. I have represented scores of people, most of whom were the most vulnerable members of our society, who have been incarcerated. I know our nation. Canada is failing to live up to the United Nations resolution it co-sponsored. Canada is failing to respect basic principles of humane treatment to prisoners. Canada is failing its obligation to keep society safe. We should be ashamed. But first let’s take a step back and look at our provincial jails where most inmates have not been convicted of any crimes and are legally presumed to be innocent. As I’ve written about before, our provincial jails are over-crowded Dickensian hellscapes. Often, three people are confined in a small cell built for two people. The odd man out sleeps on... read more

The Problem with the Liberal’s Pot Bill

The rollout of the Liberals’ Cannabis Act was a grim affair. It seems that never more grudgingly has a government followed through on an election promise. There was no talk of personal freedom or harm-based principles and little recognition of the lives ruined through criminal prohibition. It was all about the easier-to-sell political narrative of keeping our kids safe. I mean for god’s sake, Prime Minister Justin Trudeau’s go-to pot guy, former police chief Bill Blair, spoke about kids buying pot from gangsters in stairwells. The only thing this showed was that Blair does not know anything about how to buy weed (hint: most kids hit up their friend’s big brother or their hippie neighbour first). But after electoral reform, modest deficits and a dozen other broken promises, the Liberals did not have much choice but to legalize marijuana. Breaking their pot promise would have had their credibility go up in smoke. So, marijuana will soon be legal in Canada and our kids will all be safe again — kind of. Let’s start with the good news before I harsh your buzz. If this legislation passes, no longer will it be a criminal offence for adults to possess 30 grams or less of pot in a public place. And we can all grow up to four plants without risking jail time. And even kids who illegally possess a joint or two will not face the life-long stigmatization of criminal justice sanctions. This is all fantastic and makes perfect sense given that marijuana is a relatively harmless substance. Consenting adults should be able to engage in activities that do not harm others... read more

Liberals pick only low-hanging justice fruit with Bill C-39

This month, the Liberal government took swift and decisive action against zombie laws found lurking in Canada’s Criminal Code. Except their actions were not swift, decisive or principled but instead a half-hearted grab at only the lowest hanging justice fruit. Let’s first take a step back and look at the problem. As I wrote almost exactly a year ago, there is hidden in plain sight, right at the beginning of the Criminal Code, one of our law’s most laughable presumptions: Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. In other words, we assume that every person in Canada knows not just the letter of the law but also the centuries’ worth of judicial interpretation that informs our criminal justice system. The Criminal Code is a big book full of antiquated laws, unconstitutional provisions and unjust policies. Criminal law is a blunt tool that has been overused by successive generations of politicians as a lazy way to deal with complex social problems. The result has been generalized and systemic criminalization of poverty, mental illness and addiction. But at the same time, Canada’s criminal laws are also overly specific — apparently, it is not sufficient to criminalize theft but every possible variation of theft: theft of oysters, theft of telecommunication service, theft of motor vehicle, theft of cattle and theft of mail. The code also contains antiquated and absurd laws. It is illegal to fraudulently practise witchcraft or sorcery — legitimate witchcraft is perfectly fine. It is also a crime to sell, distribute or produce any comic book or work of art that depicts... read more

To Plea or Not to Plea

The plea bargain is a deal with the devil — at least according to many members of the public. The public may be right, but the real question is: Just who is the devil in the plea bargain equation? Let’s first take a step back and go over some basics. In 1975, the Law Reform Commission of Canada defined a plea bargain as “any agreement by the accused to plead guilty in return for the promise of some benefit.” The essence of any plea bargain is a quid pro quo. So the quid: The accused gives up their constitutional right to be presumed innocent and waives their right to a trial. In other words, the accused relieves the state of the heavy obligation of proving guilt beyond a reasonable doubt. After all, there is only one guarantee in criminal law — if you plead guilty you will be found guilty. And the quo: The accused receives the benefit of reduced charges, or less jail time or some measure of certainty about the ultimate sentence. But it is not just the accused and the prosecution who benefit from guilty pleas. Plea bargaining is an essential lubricant in the justice system. Recently, in R. v. Anthony-Cook, the Supreme Court of Canada described plea agreements as “vitally important to the well-being of our criminal justice system,” without which the justice system would “eventually collapse under its own weight.” So, everyone wins — unless you are the innocent accused who is induced into pleading guilty. The Criminal Code recognizes the fundamental importance that all admissions of guilt are fully voluntary. Before a court can accept a guilty... read more

INSTITUTIONAL BIAS FAVOURING CROWN ATTORNEYS PREVENTING LEVEL PLAYING FIELD

There have long been whispers in the criminal defence bar that Ontario’s judicial appointment process is broken. Since June 13, 2017, when Ottawa area MP Yasir Naqvi took the reins as Ontario’s attorney general, 70 per cent of his appointments to the bench have been drawn from the Crown’s office. Over the last eight months 17 judges have been appointed to the Ontario Court of Justice — 12 of those appointments were Crown attorneys and five were defence counsel. That does not seem like a level playing field. But this is not a new problem special to Naqvi — it has been this way for decades. Don’t get me wrong — Crown attorneys can and do make fantastic judges. Some of my very favourite judges are former Crown attorneys and they have proven to be smart, fair, compassionate and a pleasure to appear before. But the simple numbers cast doubt on what at first blush appears to be a rigorous and independent provincial judicial application and review process. In Ontario aspiring judges must submit 14 copies of their application packageto an independent committee which reviews and interviews the candidates and provides a ranked list to the attorney general who then makes his picks. The independent committee is made up of a mix of members from the bench, bar and general public and its composition is legislatively required to reflect the diversity of Ontario’s population, including gender, geography, racial and cultural minorities. And the committee is not stacked with Crowns or provincial bagmen and it currently includes David M. Humphrey — a respected criminal defence lawyer. Also, I have a bit... read more

Let’s Talk about Mental Health

This month Manitoba’s Criminal Review Board granted Will Baker an absolute discharge – and then the theatrical outrage hit the political fan, because Baker is better known as Vince Li, the man responsible for a gruesome and widely publicised 2008 killing on a Greyhound bus. But Baker was not really responsible. Baker suffers from schizophrenia. At his trial both the Crown and defence counsel agreed that his actions were driven by mental illness and that he should not be found guilty of the gruesome murder. You see, in Canada we exact punishment, vengeance and retribution against those who commit serious violent offences. But we do not punish people who don’t know right from wrong and because of mental illness cannot appreciate the nature and consequences of their actions. In Canada, people who have illnesses like Baker receive treatment and live under restrictions until they no longer pose a risk to the public. Baker did not get off scot-free. For years following the finding of not criminally responsible, Baker was confined to a secure mental health centre and received intense treatment. Each year a group of judges, physiologists, doctors, experts and members of the public reviewed his case. Gradually Baker was given more and more liberty – first escorted visits to the community, then day passes and eventually the right to live on his own. Baker passed each test – he took his medication, followed the conditions and ultimately the review board of community members, experts, doctors and lawyers found that he no longer posed a threat to the community. It was only after nine years of intense and successful treatment that Baker was granted... read more