More justice in the justice system

GPC 2015 background platform paper

We are fortunate to live in one of the safest countries on earth.   Canada’s rate of violent crime continues to drop.  Yet we continue to be subjected to a barrage of “tough-on-crime” bills. Canadians want to be safe on their streets and in their homes, but this goal will not be achieved by building more prisons or by harsher sentencing of criminals. Diverting valuable resources into incarceration and away from prevention and rehabilitation efforts will strain the system while doing nothing to improve public safety. A new independent Law Reform Commission specifically tasked with reporting to Parliament on all proposed changes to the Criminal Code, among other things, and an independent and transparent judicial appointments process would help to protect the integrity of the justice system. As the new anti-terrorism legislation of Bill C-51 is fundamentally flawed, it must be repealed.

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The Conservative government has engaged in a multibillion-dollar program to build more prisons and toughen up sentencing in the mistaken belief that our judges have been too lenient and that there is a pressing public need to put more people in additional jails. Many people support the initiative, partly because the current government has overblown the incidence and impact of crime in a partisan effort to play on Canadians’ vulnerabilities and anxieties. Rather than consider more effective measures to prevent crime and to support at-risk communities, the government, for its own partisan reasons, has opted for retribution and fear-mongering. When Howard Sapers, the Correctional Investigator, delivered too many hard-hitting reports and recommendations critical of Correctional Services of Canada’s policies and procedures, his reappointment was cancelled by the Minister of Public Safety.

Every shred of evidence points to the fallacy of the current government’s position. All experts agree that crime rates are decreasing. The vast majority of judges exercise their discretion in sentencing with intelligence and fairness. The proposed mandatory minimum sentences (mainly for drug crimes), will simply increase court backlogs. These retrograde and regrettable changes will further undermine the objectives of rehabilitation and deterrence.

The facts overwhelmingly show that more rigid sentencing does not produce a safer society. Instead, it diverts valuable resources away from proactive strategies that have already been proven to reduce and prevent crime.

Mandatory minimum sentences detract from the flexibility that is essential to making the court system work. As the Supreme Court of Canada recently confirmed in Regina v. Nur where the Court declared certain Criminal Code provisions for mandatory minimum sentences for unlawful possession of a firearm to be unconstitutional, trial judges play an essential role in applying the principle of proportionality – tailoring the sentence to best protect society. Crimes may be the same, but criminals differ. Two people convicted of the same crime do not necessarily deserve the same sentence. With mandatory minimum sentences, the scandalously large racial disparities in inmate populations will increase significantly. Incentives for guilty pleas will be removed, and the number of charges going to trial will rise, all of which will further encumber our already backlogged courts. The entire apparatus of justice — judges, defence counsel, prosecutors, and police — will feel the negative impacts of these strains on the system.

Other aspects of the current government’s law-and-order agenda have also raised widespread concerns, including the unsuccessful attempt to shut down Vancouver’s Insite supervised injection centre^[1] and the much criticized and clumsy attack on Internet privacy rights, to name just two of the proposals in the 2012 omnibus crime legislation euphemistically called the Safe Streets and Communities Act.  The Green Party fought this omnibus bill at every step.

Changes affecting criminal justice alter the fundamentals of Canada’s social fabric. Transformational changes to criminal justice policy must not be made by political whim. We must not pander to the mistaken view that harsh punishments yield safer societies. A new independent Law Reform Commission, specifically tasked with reporting to Parliament on all proposed amendments to the Criminal Code regarding crimes, penalties, or sentencing among other things would ensure that such amendments would never again be knee-jerk reactions to short-term political pressures. This Commission would also provide a forum to arrive at a public consensus on tough issues like assisted end-of-life, protection of sex-trade workers, and more realistic anti-drug policies including the legalization and regulation of marijuana.

The most recent piece of fundamentally flawed legislation from the Conservative administration is Bill C-51, the so-called “anti-terrorism legislation.”  This is yet another Conservative catch-all bill, the full impact of which could be potentially devastating in terms of individual rights and freedoms, yet it was rushed through Parliament with totally inadequate scrutiny.

It is important to understand that we already have anti-terror laws. Since coming to power in 2006, the Conservatives have expanded the powers of security services, lengthened sentences for existing terrorism offences, and introduced new offences such as the crime of leaving Canada to commit acts of terrorism. Terrorism, treason, sedition, espionage, the proliferation of nuclear and biological weapons, and other offences repeated in Bill C-51 are already illegal. The police already have expanded powers in relation to terrorism.  The RCMP has powers to disrupt terrorist plots.  That’s how they apprehended the Toronto 18, uncovered the VIA rail plot, and apprehended ISIS sympathizers in Ottawa before they could move their conspiracies into action. Full marks are due to the RCMP for these proactive successes.  Those suspected of terrorism are already subject to a second set of Kafkaesque laws that allow their detention through security certificates.  Oversight of the Canadian Security Intelligence Service (CSIS) was reduced in the 2012 omnibus Bill C-38 by eliminating the Inspector General of CSIS. Thanks to Edward Snowden, we now know that the Communications Security Establishment Canada (CSEC) has been gathering millions of Internet communications every day from Canadians even though CSEC’s mandate was supposed to apply only to foreign activities. Under project “Levitation,” CSEC collects as many as 15 million records of uploads and downloads from average Canadians every day.

Under Bill C-51, CSIS not only collects intelligence to share with the RCMP when enforcement is required, CSIS now has the additional power to act on its intelligence to “disrupt” potential terrorist activity.  (This goes against the basic premise for creating CSIS in 1984.  After an exhaustive inquiry into abuses of spy/police powers, it was determined that security intelligence activities had to be carefully separated from law-enforcement work.) Now no less than seventeen government agencies are able to share information about ordinary Canadians more easily. In addition, CSIS has the new power to apply for special warrants that would allow it to contravene the Charter of Rights and Freedoms. As a result, judges will be in the position of sanctioning, behind closed doors, unconstitutional behaviour on the part of CSIS and its agents.

Perhaps the most alarming concern is the lack of parliamentary oversight of the security services.  Canada’s security agencies – CSIS and CSEC– are not subject to scrutiny by Parliament, unlike security agencies in the United States, Britain, New Zealand, and Australia (the so-called “Five Eyes Partners”). In addition, the RCMP has no parliamentary oversight and only very weak civilian review through the Civilian Review and Complaints Commission (CRRC).  The Canadian Border Services Agency (CBSA) has no oversight and no review. The Green Party supports a system of pinnacle review through a National Security Advisor as recommended by former Supreme Court Justice John Major, who headed the commission of inquiry into the Air India terrorist attack.

Furthermore, according to the Privacy Commissioner, fourteen of the seventeen agencies that are now permitted to share intelligence obtained on individuals are not subject to any independent oversight. A huge array of undefined activities could trigger the proposed information gathering and sharing across the federal government.  For example, undermining the security of Canada extends to “Interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada.”

Since the introduction of Bill C-51 in Parliament and throughout the very limited committee hearings permitted by the Conservatives to address the numerous concerns related to this potential legislation, no one from the security establishment made a case for requiring expanded powers. Despite even Bill C-51 supporters’ admission that it is badly worded and that it is wrong to expand security agencies’ powers without better monitoring, Stephen Harper forged ahead. Minor amendments altering the definition of “activity that undermines the security of Canada” to exclude advocacy, protest, dissent and artistic expression, and tweaking the definition of CSIS’ “threat reduction powers” were for the most part merely cosmetic.

This blatant disregard for public concern is outrageous. The Green Party believes the time is overdue to put an end to this disgraceful flouting of democratic principles and misuse of executive power. This legislation should be repealed at the earliest opportunity (if it receives Royal Assent before the election). Furthermore, the decision of the Liberal Party to support Bill C-51 and commit only to amending it if the Liberal Party is elected to form government is unacceptable. The Liberal position reveals a party all too ready to put partisanship ahead of principle, personal power ahead of the people’s will – a party unprepared to reverse the dangerous government mindset that led, under their watch, to the wrongful detention and torture in Syria of an innocent man, Maher Arar, and the unacceptably extended detention of Omar Khadr in Guantanamo Bay.

Crime prevention initiatives must be revamped so that we balance national objectives with local imperatives. A variety of initiatives could strengthen communities across Canada, particularly those struggling with a young population with few social and economic opportunities.

Finally, community police are an invaluable resource and critical component of any effective crime prevention strategy. Canadian municipalities need financial support to help them expand community policing and to ensure that their forces properly reflect the diverse population of Canada (as should the RCMP).

The federal government should also establish a completely independent and transparent process – a Public Appointments Commission [Democratic reforms - Make Every Vote Count. Restore power to Parliament and the people] – for the appointment of all judges to the provincial superior courts and courts of appeal, to the Federal Court, and to the Supreme Court of Canada.  Similarly, this Commission would also oversee the appointment of all members of quasi-judicial boards and commissions, such as the Immigration and Refugee Board. The all-too-common misuse of a government’s patronage power taints not just the individual appointee, but also all quasi-judicial and judicial appointments, and it undermines public confidence in the fundamental integrity of courts, boards, and commissions.

The Harper administration has been particularly hostile toward the judicial branch of government, especially to the idea that Canada’s courts play an important role on behalf of the people of Canada.  For example, the government has not been happy when the courts have taken the unconstitutional edge off its ideological and blinkered approach to law-and-order and criminal justice. Judgments based on the Charter of Rights and Freedoms have cancelled the government’s decision to shut down facilities that help those suffering from addiction and related conditions, provided greater protection for those engaged in prostitution, and held mandatory minimum sentences to be unconstitutional in some circumstances. Unfortunately, rather than complying with the fundamental law of the land in drafting legislation, the present government has cultivated an adversarial and unproductive relationship with the entire legal system.

Yet the Charter remains a concrete expression of our shared values, the rights we can expect to have respected, and the responsibilities we owe each other. It is a crucial part of what binds us together in our diversity. The Charter blends the emphasis on individual rights with respect for community values. For example, it requires us to take into account cultural, religious, linguistic, and Aboriginal communities in interpreting the rights guaranteed to individuals. This allows for the protection of minorities without diminishing the ideal of the equality of all citizens under the law.

In conclusion, safe, strong, and vibrant communities are at the heart of the Green Party’s vision for the future of Canada – a Canada where we work together and we share responsibilities and respect for each other.  We are dedicated to responsible governance that protects our country and our fellow Canadians. This commitment shapes our approach to tackling crime, delivering justice, reducing recidivism, protecting Canada’s borders, and combating terrorism. The Green Party is also a practical party. In all our policies we seek to avoid over-the-top rhetoric and partisanship that has characterized the misguided and damaging actions of the Conservative administration.  The time is overdue to correct the damage and bring a pragmatic and balanced approach to bear on the tough issues of criminal justice.