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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

NAQVI: SOLUTION TO COURT DELAYS – CALL OFF YOUR CROWNS

There is a problem with delays in our justice system. This is true. It is also true that the criminal justice system is an insatiable beast — a black hole that will endlessly devour money and resources. The fix to delays in our courts is not as easy as simply feeding the beast. But this was the solution proposed by Ontario’s Attorney General Yasir Naqvi earlier this month. Naqvi’s proposed solution of half measures including a handful of new judges and prosecutors is a Band-Aid that will not result in quicker justice. The only real solution to court delays is to refocus and rethink how we use the justice system — maybe the beast needs a diet. There can be no debate — delays in our justice system are a very bad thing. With every week, month and year of delay, memories fade, the quality of evidence degrades and victims are denied legal closure. And, often intentionally overlooked is the reality that court delays mean that accused persons who are presumed (and often are) innocent suffer ongoing stigma, stress, loss of employment, oppressive bail conditions and incarceration waiting for their trial dates. Let’s get one thing straight — there is not one accused person being held in our Dicken-sian provincial jails who is intentionally delaying their day in court. There is simply no benefit to do so. Ontario’s remand centres are violent, overcrowded, humanity-destroying hellscapes, which are completely devoid of any rehabilitation programming or basic human comforts. No one wants to be in provincial jail waiting for their day in court and every presumed innocent but jailed client I have ever... read more

The RCMP needs you scared — and the media seems happy to help

Long before email, metadata and GPS tracking, King Louis XIII’s hatchetman Cardinal Richelieu said: “If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.” Nothing’s changed. The RCMP is back at the back door, lobbying the government for greater powers to access digital evidence — and now they’re using the media to make their case. Recently, the RCMP self-selected 10 investigation files and fed summaries to the CBC and Toronto Star. Details that could compromise ongoing investigations (or be used by journalists to fact-check) were redacted. Both media outlets dutifully gave the Mounties the headline they wanted — one about how child predators, drug gangs and terrorists are escaping justice. The RCMP’s proposed solution is, of course, more police power. It’s always more police power. The RCMP wants laws that would compel suspects to hand over passwords, grant warrantless access to subscriber information and require telecommunication providers to build back-door intercept capabilities into their networks. The RCMP’s sophisticated media campaign leverages the same fear that former Conservative public safety minister Vic Toews sought to exploit in the Bill C-30 debacle — the one that saw Toews demand that opposition MPs “stand with us or with the child pornographers.” In fact, some of the added powers the RCMP is now lobbying for were at the heart of Toews’ bill. Public backlash undermined C-30 to such a degree that then-Justice Minister Rob Nicholson had to declare the government would “not be proceeding with Bill C-30 and any attempts [to] modernize the Criminal Code will not contain the measures in... read more

Trudeau’s government should act on promises of justice reform

Last month at the 44th annual Criminal Lawyers’ Association conference, Canada’s Minister of Justice and Attorney General Jody Wilson-Raybould delivered the prestigious Spokina lecture. She said a lot of words. She told the audience the Liberal government was intent on moving forward with restorative justice initiatives, reducing the over-incarceration of indigenous people and ensuring Canada’s criminal laws are in compliance with the Charter of Rights and Freedoms. The minister went on to speak of the need for transformational justice reform and highlighted the all-too-obvious problems of overflowing court dockets and the disproportionate criminalization and incarceration of minorities and marginalized groups. Next up was judicial discretion. Wilson-Raybould said restoring judicial discretion was an issue of the upmost importance — telling the crowd that justice cannot 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. Wilson-Raybould’s speech was greeted with thundering applause and a standing ovation. But not by me. I was not at the Sopinka lecture to hear the justice minister’s words. I was in my office — hundreds of kilometres away from the adoring crowds — preparing arguments for a constitutional challenge to the Conservative government’s retroactive pardon restrictions. Shockingly, the Liberal government’s lawyers are vigorously defending the Conservative law. Words matter, but actions matter more. Last January, Public Safety Minister Ralph Goodale described the former Conservative government as having “a certain ideology and a certain approach that needs to be re-examined.” Goodale went on to describe the retroactive pardon changes as “punitive” — his lawyers are now arguing exactly the opposite. There have been words but no action... read more

Police racism? It’s part of the system

Are the Ottawa police racist? The simple answer is yes — a conclusion supported by a new study, Race Data and Traffic Stops in Ottawa. The study, authored by a highly respected research team from York University, represents the largest race-based data collection in Canadian history. The researchers examined 81,902 traffic stops between 2013 and 2015 and found that visible minorities were stopped by the police at a disproportionate rate compared to white drivers. In simple terms, a driver of Middle Eastern descent is 3.3 times more likely than a white driver to be stopped by the police, and a black driver is 2.3 times more likely to be pulled over and detained. Of course, the vast majority of police officers are not racists. Still, some are – after all, it was just last month that disgraced Ottawa police Sgt. Chris Hrnchiar posted racist Facebook comments after the death of Inuit artist Annie Pootoogook. The point of the visible minority traffic study was not to discover if a gang of racist officers was harassing minorities for kicks and giggles. Life is more complicated than that. In the real world villains seldom twirl their mustaches and laugh menacingly. The real point of the study – as was the case with carding and marijuana arrests – is to determine whether the actions of the police are guided by systemic racism. Systemic racism is insidious because it is hard to identify. It’s given life by our unconscious biases, our privilege, our irrational unacknowledged fears, and the very histories of our institutions. In the case of traffic stops, however, the study’s data makes... read more

Its Time to Record the Police

On July 24, the Ottawa police were called to a coffee shop to respond to a disturbance. There were reports that a man had attempted to grope a woman. By the time the police arrived at the coffee shop, the man had left. The police pursued. Minutes later, 37-year-old Abdirahman Abdi was dead. Abdi was not carrying any weapons. Only the police were armed. Witnesses described police officers on top of a grounded Abdi beating him with batons and spraying him with pepper spray. It was clear to onlookers that Abdi was in serious medical distress. These same witnesses reported that the police officers involved in Abdi’s death seemed in no hurry to administer CPR. Videos taken by members of the public show a beaten and handcuffed Abdi lying motionless on the concrete for 10 minutes before paramedics arrived. And another black man is dead at the hands of the police. Ottawa may have its very own Sammy Yatim. The Special Investigations Unit is investigating Abdi’s death. Regardless of the outcome of the SIU’s investigation, the situation does not reflect well on the Ottawa criminal lawyer. I have little confidence that the police will be held to account — just Google “SIU police cleared.” The odds are forever in the police’s favour. In the rare case where the police are held accountable for gratuitous violence, civilian cellphone videos have played a key role. Perhaps this is why the police attempted to confiscate the phones of the witnesses who watched Abdi die. It is time to require all police officers to wear a body camera — not to record the public but to record them.... read more

Expect Delays: Right to a Speedy Trial

In 1991, more than 47,000 criminal charges Ottawa were thrown out of Ontario courts. Why? Because of systemic disregard for the Charter-protected right to a trial within a reasonable time and a man named Elijah Anton Askov. In 1983, Askov was charged with very serious offences: extortion, brandishing and pointing a sawed-off shotgun, and assault with a weapon. But there never was a trial. As it turned out, 34 months spent waiting for a trial was too long and unconstitutional.All charges against Askov were stayed. In finding that Askov’s Charter rights were violated, the trial judge commented that the unreasonable delay was caused by a lack of institutional resources and that that those responsible for the administration of justice had known about the systemic problem for years. In 1990, the Supreme Court of Canada upheld the trial judge’s decision and affirmed the fundamental importance of the right of accused persons, who are presumed innocent, to have the opportunity to clear their name and reputation at the earliest possible opportunity. Then, in Ontario alone, lower courts dismissed more than 47,000 cases. And so there was swift action. Politicians increased the use of criminal sanctions to deal with complex societal problems and doubled down on their misguided love of minimum sentences. Prosecutors and police became risk averse — overcharging by police became the norm, denial of bail became routine, and speedy resolution of cases became more difficult. The result was overflowing court dockets and exploding jail populations. The right to a speedy trial became even more illusory than in the pre-Askov days. So it fell to the courts to take action, and they did.... read more

The war on drugs blindly marches on

By Michael Spratt: After 10 years of tough-on-crime ideology, Canada is back with a new and progressive Liberal government. At least this is the narrative. The most progressive and certainly highest-profile plank of the Liberal’s justice platform was the promise to legalize and regulate marijuana “right away.” In reality, with the promise of legislation not until 2017, “right away” is proving to be a long, long time.In the meantime, the war on drugs blindly marches on. Let’s just get this out of the way right now: The war on drugs offences law has been a complete and abject failure. The social and financial cost of drug criminalization outweighs any illusory benefit. Yet on we blindly march. Over the past 10 years, arrests for possession of marijuana have increased by 28 per cent. In 2014, approximately 50,000 people were arrested for simply possessing marijuana. Ultimately, about 24,500 of those people ended up in court. Our court dockets are not filled with middle-class white kids caught smoking a joint. These kids are cut slack. Police decline to charge and prosecutors often divert or withdraw these marijuana charges. There are echoes of racism in Canada’s pot laws. Minorities and aboriginal communities are disproportionately charged, prosecuted, and incarcerated. In simple terms, the criminalization of marijuana does more harm than good. Every year, scores of young men and women are killed over relatively small amounts of pot — killed because marijuana is illegal, making it the focus of a vastly profitable and violent black market. Marijuana criminalization imposes unreasonable penalties on a relatively low-risk vice. In the real world, a drug record means limited... read more

Crown bury heads in sand on bail failures

By Michael Spratt – The problems at the Ottawa-Carleton Detention Centre should be obvious – even to the most zealous tough-on-crime ostrich. Over the past decade, the notorious Ottawa jail has earned a well-deserved reputation as a Dickensian hellhole. This is, after all, the same jail where guards stood by while a pregnant woman gave birth on the cold concrete floor of her jail cell; the same jail where the Ontario Ombudsman described guards brutalizing inmates then covering up that abuse with impunity; the same jail that is so overcrowded inmates were forced to sleep in wet shower cells; the same jail where inmates have literally gone insane while in segregation. There is always a straw that breaks the government’s back and spurs action. In the case of the Ottawa jail, it seems that shower-jail-cells was one indignity too many for Community Safety and Correctional Services Minister Yasir Naqvi and so he took definitive action – he ordered the preparation of a report. That report, the Ottawa-Carleton Detention Centre Task Force Action Plan, was released Wednesday and sets out 42 recommendations to address systemic overcrowding and poor conditions at the Ottawa jail. Many of those recommendations are welcome but ultimately the recommendations – if ever implemented – merely address symptoms of a broken system. Let’s take a step back and talk about the root cause of our jail problem – there are simply too many people in custody. At a time of historically low crime rates, Canada has fallen in love with incarceration. Our provincial jails are bursting at the seams and there is one simple cause — an over-reliance on pre-trial incarceration. But we knew this long... read more
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