Liberal criminal justice reforms a bold betrayal

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Late last month, in the dying hours before a long weekend, Minister of Justice Jody Wilson-Raybould, flanked by her parliamentary secretaries Marco Mendicino and Bill Blair, unveiled her self-described and long-promised “bold” criminal justice reform. The legislation, Bill C-75, was billed as a silver bullet to unclog our courts and bring about a “cultural shift” in the justice system. The changes may be bold, but in this case the proposed reforms will likely result in more delays and more unfair trials.

Wilson-Raybould’s bold legislation was met with an immediate, loud and visceral condemnation by criminal defence lawyers calling the bill an “utter and complete betrayal,” an erosion of procedural safeguards that “gravely misses the mark,” a “regressive blindside” and “worse than anything Harper ever did.”

There is no question that we need swifter justice in our courts. Dockets are overflowing and it can take years for a criminal allegation to reach trial. This is not because accused people want to delay cases — my clients, especially those in custody, beg for earlier trial dates. Every actor in the justice system wants to speed up the process, but we can’t. You see, our courts are clogged with petty offences that all too often are the result of addiction, mental health and poverty. These offences should be diverted from the criminal system, leaving our courts better ready to tackle serious and violent crimes. The Criminal Code is also still overflowing with all of the Harper-era minimum sentences, which are an unfair and oppressive drain on court resources. 

These are the obviously bold reforms the justice system is in desperate need of. It seemed that Wilson-Raybould was on board — not only were these reforms an election promise but, in a 2016 speech to the Criminal Lawyers’ Association, 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.

Wilson-Raybould also promised transformational and Charter-compliant justice reform and highlighted the all-too-obvious problem of the disproportionate criminalization and incarceration of minorities and marginalized groups.

But after the introduction of bill C-75, it is clear that Wilson-Raybould has chosen to ignore her promises and at the same time turn her back on the root cause of delay. Instead, she seems content grabbing the lowest-hanging, most dangerous and most counterproductive fruit. 

Bill C-75 promises to speed up court cases by eliminating preliminary hearings for all but the most serious matters. Also, quietly slipped into the bill is a provision that would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of actually calling them at trial to testify. Not only will these changes waste more court time than they save, they will erode fundamental safeguards of trial fairness.

Preliminary hearings account for only about three per cent of all court time. In that context, Wilson-Raybould’s claim that her legislation will reduce their use by 87 per cent sounds a bit less inspiring. What Wilson-Raybould conveniently leaves out is that preliminary hearings not only increase fairness but actually save court time by weeding out weak cases, focusing trials and increasing the likelihood of guilty pleas. Under the new rules, more cases will go to trial and those trials will be longer and less focused. 

Wilson-Raybould has inexplicably chosen to prefer policy-based evidence making over evidence-based policy-making.

In his 2007 report on the wrongful conviction of James Driskell, who spent 13 years behind bars for a crime he did not commit, Justice Patrick Lesage noted that preliminary hearings are an important safeguard for fair trials. Ultimately, the commission of inquiry found that the preliminary inquiry has a long history in Canadian criminal law and is often of immeasurable assistance to the Crown and more often to the accused in reducing the likelihood of miscarriages of justice. 

But fairness seems to be taking a back seat on Wilson-Raybould’s priority list. The out-of-the-blue change to shield police officers from cross-examination is particularly cynical and counterproductive. If an accused wants to actually ask a police officer any questions at trial, they will be forced to disclose their trial strategy and beg the trial judge for permission. Here is a prediction: These applications will always be granted; that is just how oppressive and odious Wilson-Raybould’s new rule is. But, of course, all of those applications to ask questions of police officers will eat up court time and cause more delays.

Wilson-Raybould has betrayed her promise that reforms to Harper’s punitive, time consuming and counterproductive minimum sentence laws were “coming soon”. Instead, she has introduced regressive legislation that will erode important mechanisms to ensure trial fairness and will actually result in increased court delays.

The Harper government passed law after law that removed judicial discretion from sentencing and embraced harsher and more vindictive punishments. But at least the Conservative measures did not imperil due process. And that is exactly what Wilson-Raybould has done – something worse than Vic Toews, Rob Nicholson, Peter McKay, or Steven Harper ever did.

But maybe that is what we should have expected when we blindly trusted two former prosecutors and an ex-police officer with reforming our criminal justice system

Why the new justice reform bill, C-75, is anything but just

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Last week, Justice Minister Jody Wilson-Raybould unveiled her self-described “bold” criminal justice reforms. The legislation, Bill C-75, was billed as a silver bullet to unclog our courts and bring about a “cultural shift” in the justice system. The changes may be bold, but in this case the proposed reforms will likely result in more delays, more racial inequality and more unfair trials.

There is need of swifter justice in our courts. Dockets are overflowing and it can take years for a criminal allegation to reach trial. This is not because victims or accused people want to delay cases. Every actor in the justice system wants to speed up the process but we can’t. Our courts are clogged with petty offences that all too often are the result of addiction, mental health and poverty. These offences could be prevented or diverted from the criminal system, leaving our courts to tackle serious and violent crimes. But Wilson-Raybould ignored this root cause of delay and chose to grab the lowest-hanging and most counterproductive fruit.

Bill C-75 promises to speed up court cases by eliminating preliminary hearings for all but the most serious matters. Also, quietly slipped into the bill is a provision that would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of actually calling them at trial to testify. Not only will these changes waste more court time than they save, they will erode fundamental safeguards of trial fairness.

Preliminary hearings account for only about three per cent of all court time. In that context, Wilson-Raybould’s claim that her legislation will reduce their use by 87 per cent sounds a bit less inspiring. What Wilson-Raybould conveniently leaves out is that preliminary hearings not only increase fairness but actually save court time by weeding out weak cases, focusing trials and increasing the likelihood of guilty pleas. Under the new rules, more cases will go to trial and those trials will be longer and less focused. Wilson-Raybould has inexplicably chosen to prefer policy-based-evidence-making over evidence-based-policy-making.

Fairness seems to be taking a backseat to expediency on Wilson-Raybould’s priority list. In an out-of-the-blue change, the new bill would shield police officers from cross-examination in some cases. If an accused wants to actually ask a police officer any questions they will need to apply to the trial judge for permission. Here is a prediction: These applications will always be granted; that is just how oppressive and odious Wilson-Raybould’s new rule is. But of course, all of those applications to ask questions of police officers will eat up court time and cause more delays.

The justice minister also claims that the new bill will bring a “cultural shift” to the courts by eliminating the peremptory challenge: the ability of both the Crown and the defence to exclude jurors. After the Colten Boushie trial, there was a public outcry because it appeared that the defence purposefully excluded Indigenous jurors. So a month later, we get a new law. But in most cases – and every case I have been involved in – defence lawyers actually use their peremptory challenges to increase a jury’s racial diversity. If I am representing a racialized accused, I can exclude the 12th white juror to give the next racialized juror a chance to be selected. In simple terms, the new rule will actually mean more all-white juries.

Perhaps most galling is what is not in the new law: the elimination of mandatory minimum sentences. This change would reduce court delays and increase fairness. It also has decades of evidence and study to back up its positive impacts. And, if you care about such things, it was also an explicit election promise.

Bill C-75 has been widely condemned in the legal community. It has also shown that, like her predecessors, Wilson-Raybould is willing to draft reactive legislation based on one high-profile case, is willing to disregard evidence, is willing to sacrifice trial fairness, and is willing to break promises.

In other words, Wilson-Raybould would have been right at home in Stephen Harper’s Conservative cabinet.

Pot bill’s sober second thought

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Last week, the Liberal government’s half-hearted cannabis legislation passed second reading in the Senate. Normally, this would not be cause for celebration. After all, there is little downside in voting to study legislation and the marijuana bill is no exception. Opponents to the bill, if not persuaded by evidence heard at committee hearings, can still vote to kill the bill. But the Senate’s pot vote was no sure thing and the government was left scrambling to bring a number of independent senators back to Ottawa to avoid a defeat of the bill. So, perhaps it is a good thing that Trudeau’s “independent” senators are not really that independent as senators toed the party line and voted 44 to 29 to pass the bill.

Despite some massive flaws in the bill, the legalization of marijuana is unquestionably a good thing — 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. Illegal marijuana leads to violence and death as addiction and mental health issues are driven underground and distribution with their associated profits are ceded to the black market. As a criminal lawyer, I have seen the bloodshed brought about by illegal weed. The bottom line is that it is not pot that creates these problems but the criminalization of marijuana that kills.

 

But these are not all the evils that criminalization brings about. Illegal 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 stigmatizing criminal records.

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. Our drug laws are built on a foundation of racism and bias.

There is no question that marijuana should be legalized and any opponent who shakes their head at this idea while drinking their legal afternoon cocktail is a damn hypocrite.

But there are major issues with the current legislation that were ignored by the government in the House of Commons — despite Trudeau’s promise of policy based on evidence and a respect for the Charter rights.

The pot 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 passes a joint to his 17-year-old friend is a criminal. An adult who grows five marijuana plants is a criminal. And anyone who possesses non-government-approved marijuana is a criminal.

And the punishments for these offences are ridiculously high. An 18-year old who passes a joint to their 17-year old friend or an adult who possesses more than 30 grams of pot for the purpose of distribution can face a 14-year jail sentence. These absurdly high potential penalties will inevitably be found to constitute cruel and unusual punishment. This is especially true when one considers that, under the former Conservative government’s 2012 Faster Removal of Foreign Criminals Act, permanent residents convicted of these offences will face automatic deportation with no right of appeal — even if they are not actually sentenced to any jail time

And then there is the fact that Bill C-45 perpetuates the disproportionate criminalization of youth. Bizarrely, the legislation makes possession of marijuana that is perfectly legal for adults a criminal offence for youth. In no other area of criminal law is an activity magically legalized at the age of 18. The asymmetrical criminalization of marijuana will face an inevitable constitutional challenge.

And it gets worse for the kids. Although Bill C-45 leaves dozens of minor marijuana offences in the Criminal Code, under some circumstances, police officers can use their discretion to issue tickets instead of criminal charges. But not if the offender is under 18.

But the whole ticketing regime is also constitutionally flawed because it discriminates against the poor. If the pot ticket is paid within 30 days, then the resulting judicial record of the ticket will be sealed and cannot be disclosed to anybody.  

There is good reason for this protection as a drug record, even if it’s just a ticket, can negatively impact travel, employment, housing and full participation in many pro-social activities.  

But if you are poor and can’t pay the fine in 30 days, your record won’t be sealed. Forget travelling south of the border and get ready to fail any employment-related background checks.

It seems that government’s focus on the middle class has blinded it to the simple fact that the ticket regime discriminates against the poor and will inevitably be found to violate the Charter.

Although all of these issues were raised in the House of Commons, the government refused any amendments to fix them. Make no mistake, the Liberal’s marijuana legislation is a mess born out of an unprincipled political calculus. But some minor amendments would make it slightly less bad. 

This may be our one and best chance to move toward a rational drug policy. Sober second thought and courage is needed make sure that the government’s half-measures to legalize marijuana don’t continue the current harms of strict prohibition. 

Hopefully, the Senate can find the courage that Prime Minister Justin Trudeau seems to be lacking to make the necessary changes.

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Just say no to the police

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Fear is a very good motivator and this is what our country’s police forces wallets depend on: Fear of guns. Fear of gangs. Fear of drugs. Fear of violence. Fear to justify seemingly ever-increasing police budgets.

The reality is that fear of increasing violent crime is completely irrational. Canadians have never been safer. The most recent crime statistics continue a two-decade trend of decreasing violent crime. Violent-crime rates were 24-per-cent lower in 2016 than they were a decade earlier and are lower than they have been in the last half-century.

But while crime rates are going down, police budgets are not. Police budgets never do. A 2014 study conducted by the Fraser Institute found, that between 1986 and 2012, police expenditures rose by more than 45 per cent while crime rates plunged by 37 per cent. And there has yet to be a credible argument proving a causal relationship.

Each year, Canadian communities hand over billions of dollars to our police forces — fear pays these bills. Canadians wildly overestimate the risk of violent crime. A recent EKOS survey, commissioned by the Department of Justice, found that half of Canadians surveyed actually think crime rates are on the rise. So, perhaps it should be no surprise that we seem content to write the police a blank cheque.

We should, however, be much more critical of policing costs. At the very least we should not be so blind to transparent and cynical cash grabs by the boys in blue. 

The soon-to-be legalization of marijuana offers a perfect illustration into the absurdities of the budget demands by forces. You would think it would be cheaper to investigate and arrest people for conducting legal activities — in that they don’t need to do either. But it turns out that, according to police, legal marijuana will actually be more expensive to enforce than illegal marijuana. The Edmonton police say they will need an extra $7 million per year, the Montreal police are also asking for millions more and the Ottawa police claim legal pot will cost add more than $6 million to their bottom line. When the Ottawa police came to the police services board with their hands out, they were able to provide little information on why they needed the extra money. Laughably, they claimed that they want to build a greenhouse to keep confiscated pot plants alive.

It is an absurd position that reflects a culture of greed and entitlement. But our politicians can’t seem to say no. Ontario has vowed to give municipalities an extra $40 million to enforce legal weed. 

It is time to say no to the police. 

Police want millions of dollars to equip more officers with Tasers. Police want more money to purchase and maintain their fleets of military tanks. Police want more money to hire more officers — the already bloated Ottawa police force asked for and received more money to add 90 additional officers to its small army.

This is all made possible because of unjustified and irrational fears — a public’s unfounded fear of increasing crime and an irrational political fear of standing up to the thick blue line.

Even the federal government has pushed more money on to the table. Public Safety Minister Ralph Goodale proudly announced that the federal budget would hand police forces $327.6 million up front and then $100 million a year to fight gun and gang violence. There is some evidence that despite the overall trends that gun violence is on the rise, but this evidence is based on small sample sizes and contrary to the longer-term trends. But no politician wants to say no to funding illusory public safety measures.  

The police don’t need more resources. They deserve fewer. Perhaps there is indeed a need to allocate more resources to localized and short-term spikes in gun violence. That’s fine — police have those resources. We do, after all, provide Canadian police forces more than $14 billion per year in funding. Police just need to reallocate funds — perhaps away from the thousands of marijuana arrest they make every year. If shootings are a problem, maybe the police can cut down on their over-enforcement of nuisance offences that disproportionately target the poor. Perhaps they can save money by stopping their practice of conducting traffic stops on visible minorities who have committed no offences — as they have a tendency to do in Ottawa.

It is time for the police to make choices about how they spend our money and then be prepared to justify those choices.

At the very least, police should be asked to be honest and transparent about their actions in exchange for funding — no more malarkey about building weed greenhouses. The next time police come with their hands out looking for a blank cheque, we should insist that in return they promise not to lie about using invasive cellphone snooping devices or maybe we should insist that they commit to continuing formal charter training to avoid violating civil rights.

But it appears that policing is a money pit. Crime rates go down and costs go up. Marijuana is legalized and costs go up. Streets are safer than they have been in 50 years and more officers are hired.

This is a problem with an easy cure — and it starts by simply having the courage to say no.

More Tasers, more problems?

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In December 2017, Ottawa’s Police Services Board approved a $250,000 purchase of 140 conducted energy weapons, more commonly known as Tasers. At the same time the Ottawa police indicated that in 2018 they plan to ask the board to arm even more police officers with energy weapons.

This seems to be a part of a coordinated effort by police forces to push for more energy weapons. The Toronto Police don’t want to be left out. Recently, they asked for almost $1 million to buy 400 new Tasers.

The proponents of spending millions of dollars to arm local police forces with energy weapons make what seems, at first blush, a compelling case. They say that Tasers will save lives - instead of drawing a deadlier firearm police officers can reach for their Taser. They are also quick to point to an apparent lack of injuries caused by energy weapons. And they are backed-up by multiple coroner's inquests which have recommended that Tasers be deployed to all front-line officers.

 

But, if all police officers have Tasers could they be overused? Don’t worry says Toronto police deputy chief Barbara McLean – Tasers will “never to be used as a substitute for de-escalation.”

But it turns out that if more police officers have more Tasers they are more likely to be used more often. In 2015, the Ottawa Police Services Board approved - without any deliberation – the purchase of 100 energy weapons. Unsurprisingly the next year there was an 84-percent increase in Taser use.

So, let’s do what the Ottawa’s Police Services Board did not do and engage in some deliberation.

While a 2011 US Department of Justice study found that although Taser use reduced rates of injury the use of Tasers was still associated injury and death. In short, there is less chance of injury when comparing a suspect shot with a Taser to a suspect subdued by a police dog. But to be clear, in a civilian and police encounter, the injury or death caused by Taser use is always that of the civilian.  

But an argument that Taser use can decreases injuries only hold water if there is not an overuse of Tasers once they are put in the hands of every police officer.

The Department of Justice study also found that when Tasers are made widely available to police, the evidence shows that they “rapidly overtake other force alternatives” and in some cases, were being used at rates that exceeded that of officers using “soft empty hand tactics.” The study also raised concerns about the growing use of Tasers finding that substituting Tasers for physical control tactics raise the spectre of overuse.

So, there is good reason to be skeptical of claims, like those made by Toronto police deputy chief Barbara McLean, that Tasers will “never to be used as a substitute for de-escalation.”

But we can all agree that there is less risk of injury from being shot with a Taser than being shot with a firearm. So, if Taser use decreases firearm use then maybe more putting a Taser in every police officer’s hand if a good thing.

But that assumption has been called into question too. A recent University of Chicago study found that “there is no evidence that Tasers led to a reduction in police use of firearms.”

And there is justifiable concern that when Tasers are used they will be disproportionately used on vulnerable populations. The Ontario Human Rights Commission (OHRC) voice this concern to the Toronto police board saying that CEW use “raises serious human rights concerns because people with mental health disabilities tend to have more frequent contact with police and may be more likely to have a Taser used on them because of behaviours and responses to police instructions that appear ‘unusual’ or ‘unpredictable.’

There is research to back up the OHRC’s concerns. After a comprehensive review of prior data and evidence the Stanford Criminal Justice Center concluded: “while the literature suggests that [Tasers] may have benefits, these benefits are easily overstated. Moreover, realizing those potential benefits—such as reducing the rate of injuries to officers and possibly suspects—may require accepting the possibility that vulnerable populations are more likely to be exposed to the painful effects of [Taser use]. Meanwhile, the “costs,” or potential harms, of using [Tasers] are not yet fully understood.”

The evidence is clear that arming more officers with Tasers will lead to their overuse, especially on vulnerable populations. The available evidence also suggests that the benefit of increased Taser use is dubious. 

And then there is the opportunity cost involved in further arming our police. Maybe all of those millions and millions of dollars could be better spent. Perhaps investing in frontline mental health workers would better improve public safety and community health. 

There have been recommendations in some coroner’s inquests to increase the use of Tasers but former Supreme Court of Canada justice Frank Iacobucci’s 2014 report reviewing the Toronto polices’ use of lethal force sounded a note of caution pointing to the “absence of definitive research into the risks of CEWs for populations who are likely to encounter the police in non-criminal contexts.” 

Iacobucci recommended that the Toronto Police study the medical impacts of CEW use – the police force refused. 

All told Iacobucci made 15 recommendations relating to energy weapons. Most of these recommendations involved oversight, training, and further study. 

None of the recommendations suggested that a majority of police officers should be armed with Tasers. Iacobucci recommended caution and further study.

When you take the time to actually consider the evidence about Taser use that should come as no shock.