Let's talk about mental health

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Criminal defence lawyers have thick skins. It’s sort of a requirement of the job. After all, we exist in an adversarial system. We are overworked and usually underpaid compared to our courtroom adversaries. We often represent unpopular clients who are accused of committing unspeakable acts. There are no snowflakes in the defence bar. But we are human too. 

On Sept. 8, after bedtime baths and stories were done and the kids were tucked in for the night, I sat down on the couch, put my feet up and had a beer. I was tired. I had been in court all week and working late every night defending a client accused of a very serious sexual assault. Earlier that day my client had been found not guilty. It had been my sixth sexual assault trial in a row. That is how I spend my summer. 

Professionally, it had been a successful couple of months. In each of the trials my client had been acquitted. It was also the worst summer of my life. But that night, sitting on the couch, I did not even realize this. I felt depressed and I did not know why. It should have been obvious but it wasn’t. Not until I actually took the time to think about it. 

Anyone who spends time in Canada’s criminal courts can tell you it is nothing like you see on television. Rarely are there Matlockmoments where a case is solved with one well-timed question. There is drama and excitement in court but this is usually broken up by long periods of dull procedural and legal argument. But television gets one thing right – the evidence presented in court can often be gruesome and disturbing.  

The impact of graphic courtroom evidence was made plain last week at the House of Commons standing committee on justice and human rights. The committee is studying the toll that this type of evidence can take on the mental health of jurors. 

The committee heard evidence from a juror in a trial that involved the murder of a young woman by her boyfriend. She was stabbed 25 times and set on fire. The accused in that case also suffered horrible burns from the fire, leaving him disfigured and disabled. In that case, the evidence included hours of testimony about the graphic murder, including dozens of autopsy photos of the victim, a 911 call with horrific screams of the victims in the background and the testimony of a seasoned fire captain who broke down on the stand. 

The committee also heard about a case that involved a young woman and four accomplices who murdered the woman’s parents. A juror told the committee that she had to “live with daily thoughts of this crime: graphic coroner's photos of bullet holes through flesh, the bloody crime scene and chilling testimonies.”

The committee also heard from one of the jurors from the Paul Bernardo murder trial who testified that she has to watch “those girls being raped and tortured — wasn't just watching evidence; it was sitting in a box where I felt I couldn't do anything to save them. It was excruciating for me.”

This type of evidence can have long-term and devastating impacts on jury members. Jurors have no prior experience in the justice system. Their job is stressful as they are called on to make decisions that will have monumental impacts on the victims, the accused and the community. Jurors are cut off from friends and family and forced to fulfill a vital civic duty at great personal expense. Sadly, in most provinces jurors are offered very little support after a verdict is rendered. They are left alone to deal with lingering impacts of hearing traumatic evidence. This unacceptable treatment has prompted the committee’s study.  

But what is an exceptional experience for jurors is a daily experience for other justice system participants. Which is worse, being exposed for the first and only time to a gruesome case or experiencing difficult case after difficult case?

There are after all more than just jurors in our courts. Crown attorneys, judges, first responders, court reporters, court clerks and judicial attendants are all exposed on a daily basis to horrific evidence.

But it is even worse for defence counsel. 

We often work alone. We are in court by ourselves during the day and working alone late at night. We can’t really turn away cases – there is a professional obligation to assist people in need and as small business owners if we don’t litigate we can’t feed our families. 

There is also a culture among defense counsel that discourages discussion about mental health issues. Perhaps this is why rates of mental health issues and substance abuse are many times higher in the defence bar than in the general public. 

Our job is difficult. Other justice system participants face many of the similar stresses but no Crown attorney, police officer, judge or paramedic is ever asked at a party how they can sleep at night representing people who commit terrible crimes. No other justice system participant is forced to explain how they can live with what they do for a living. 

There is also a tension between our feelings as humans and our roles in court as defence counsel. I find sexual assault cases particularly difficult. As a human being I #believesurvivors. But in court, the rules force me to suggest to sexual assault complainants that they are lying or have imagined the assaults. 

Yes, in court there are false allegations; there are lies; and there are false memories. But only the blindest of fools believes that all sexual assault allegations are false. It is hard to go to court knowing that you will be forced to suggest to a complainant they are wrong. It is hard when your job forces you to make people cry on a daily basis. This tension does not exist for anyone else in the courtroom.

I know that my role is essential to the proper administration of justice. I am lucky that I have a supportive family and a circle of colleagues and friends who understand just how important my job is. 

But not everyone is so lucky.

We should be proud that the justice committee is tackling the issue of the mental health stresses faced by Canadian jurors. But we need to do more. We need to examine how we can ensure the health and well-being of everyone in our courts.

The first step is acknowledging that we can do better. The first step is being willing to talk about issues that have, for too long, gone unacknowledged.

So, let’s start now. What did you do on your summer vacation?  

Bail reform: Naqvi tells Crown Attorneys to follow the law

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Last month, Ontario Attorney General Yasir Naqvi delivered a stunning rebuke of his Crown attorneys and publicly announced that they had not been following the law.

But that was not how Naqvi spun the announcement of new provincial bail directives. Naqvi did not directly call out his Crowns. In fact, he insisted that they had been acting perfectly appropriately. Naqvi instead focused on the fact that his new directives would make the bail system operate faster and fairer and help to protect the safety of the public. According to Naqvi, the new bail announcement was part of a progressive effort on the part of the government to reduce inequities in the justice system — particularly when it comes to indigenous and racialized communities.

The Toronto Star’s editorial board characterized the Naqvi announcement as “sensible policy.” But what did Naqvi really announce? The new bail policy seems pretty elemental: Prosecutors should only seek detention if there is a prospect of conviction, any bail order should be as least restrictive as possible and conditions of release should be rationally connected to the allegation and to one of the three grounds for detention in custody.

This was not the case before? Were prosecutors seeking the detention of presumed innocent accused when they had no chance of proving guilty? Were prosecutors insisting on overly restrictive bail conditions? Were prosecutors advocating for bail terms that had no relation to the alleged offence?

Sure they were. And this should have been the real story.

Naqvi’s new directives bring Ontario’s bail policy up to the minimum standards. This can hardly be called progressive.

This year, the Supreme Court of Canada released its decision in the case of R. v. Antic and reiterated the long-standing principle that the “right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system.” The Supreme Court went on to say that bail should be granted as soon as possible and with the least restrictive conditions as possible. But all of this was not a newly created legal precedent. In 2008, the Quebec Court held that “release is favoured at the earliest reasonable opportunity and . . . on the least onerous grounds.” And as far back as the parliamentary debates on 1972’s Bail Reform Act, it was recognized that an unlighted bail system operates harshly against poor people.

But why stop there. 

In 1969, the Report of the Canadian Committee in Corrections — which came to be known as the Ouimet Report — was commissioned by then-minister of Justice Guy Favreau and was chaired by Justice Roger Ouimet and vice-chaired by the inestimable G. Arthur Martin.

Ouimet detailed some pretty fundamental aspects of a just bail system: that the basic purposes of the criminal law should be carried out with no more interference with the freedom of individuals than is necessary; that restraint should be applied and bail should be denied where necessary; that pre-trial detention to obtain pleas of guilty or to inflict punishment on a person whose guilt is not established is indefensible; and that bail conditions should be as least restrictive as possible.

Naqvi’s announcement of a “new” bail policy seems pretty similar to Ouimet’s old 1969 recommendations.

Some credit needs to be given to Naqvi. Even if his new directives only get the justice system to 1969’s starting line, it is better than a continuation of the status quo.

And it is certainly better than the solution proposed by former Ontario ombudsman and current partisan Conservative surrogate André Marin, who would see the bail problem solved by building bigger and more expensive jails.

So, what more needs be done? We need to build smaller jails. We need to employ more restraint and incarcerate only those who represent a danger to the public. We need to ensure people in custody are granted prompt funding for legal representation. We need to actively assist people in jail in putting together successful bail plans. We need to make robust addiction and mental health treatment available to those in custody. We need to go even further to decouple mental health and addiction issues from the criminal justice system. We need to be less risk averse. We need to divert more criminal charges away from the court system. Quite simply, we need to be releasing more people on bail more of the time, more quickly.  

So while the new announcement makes the situation less bad, there should be no mistake — Naqvi’s bail policy announcement is an admission of decades of failure.

Naqvi’s new announcement must be seen as a starting point for bail reform and not a progressive finish line.

Liberals break two and a half promises with new pot laws

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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 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.

The new pot bill also continues to criminalize anyone under 18 who possesses more than five grams of marijuana — an activity that will be perfectly legal for adults. Nowhere else in the Criminal Code is a youth criminalized for an act that is legal for an adult. The disproportionate and asymmetrical criminalization of youth is simply counter-productive and an irrational criminal justice policy. 

These flaws in the cannabis bill were all detailed by multiple witnesses (including me) who testified before the Justice Committee.

And after 109 witnesses there were surprisingly few amendments. 

First, let’s start with the three positive amendments that passed. Liberal MP Ron McKinnon successfully moved an amendment to add a Good Samaritan exception to the bill. The committee also amended the bill to legalize edibles within 12 months. And the ridiculous criminalization of cannabis plants that exceed 100 centimetres of height was removed (but even here politics was played as the NDP’s amendment was opposed by liberals so they could pass their own substantively identical amendment).

Despite these three reasonable changes, dozens of necessary and equitable amendments — in fact, every opposition amendment — were rejected by the Liberal-dominated committee.

An amendment to the purpose of the act to recognize that criminal prohibitions in relation to cannabis may have a negative impact on social determinants of health — rejected.

Amendments to actually remove marijuana from the Criminal Code or at the very least to reduce the impacts of criminalization including: increasing the amount of marijuana that can be possessed, preventing the asymmetrical criminalization of youthreducing criminal penalties to bring them more in line with alcohol and tobacco and narrowing distribution offences to limit the absurd criminalization of a 19-year-old who passes a joint to a 17-year-old friend — all denied.

Despite the evidence, Liberals voted as a block against every opposition amendment. 

The Conservatives pouted that they did not support legalization so they, too, robotically voted against every amendment — even ones with which they agreed — even with the full knowledge that the bill will inevitably pass in a majority Parliament.

So, how does the Liberals’ conduct prove that they have broken their promise to listen to evidence and take the parliamentary committee process seriously?

One short example.

Bill C-45 leaves dozens of minor marijuana offences in the Criminal Code. Under some circumstances, however, police officers can use their discretion to issue tickets instead of criminal charges. If the ticket is paid within 30 days, then the judicial record of the ticket and the court proceedings are 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 even if the police are blind to race and socioeconomic status when they make the decision to forgo criminal charges and issue tickets (spoiler: they won’t be), the new legislation is not. 

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

The simple fact is that the ticket regime discriminates against the poor and will inevitably be found to violate the Charter. 

This was the evidence before the committee. This was the evidence that the Liberals ignored.

The NDP’s Don Davies moved a minor amendment to fix the ticket problem. In short, he proposed that if a person can satisfy a judge that they are poor and cannot pay the ticket, the judge would have the discretion to treat their record in the same way as someone who could afford to pay the fine or the ticket.

It was a reasonable solution that was evidence based. Even the Conservatives thought so, at least according to Conservative MP Marilyn Gladu who said she agreed with the principle of Davies’ change, adding, “If you're poor, you shouldn't be punished for not being able to pay your ticket by receiving more criminality, or less privacy, or anything else.”

But the Conservatives voted against the amendment — because politics.

And so did the Liberals.

Are the Liberals against judicial discretion? No. Are the Liberals in favour of punishing the poor more harshly? No. Are the Liberals ignoring evidence, playing politics and refusing to improve their bill? Most certainly.

This is how a half-kept promise on marijuana legalization exposed two more times the Liberals broke their word.

But who’s counting?

Bill C-45: A half measure on marijuana

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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 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 or possesses a plant 101 centimetres tall is a criminal. And anyone who possesses non-government-approved marijuana is a criminal.

The reason put forward to justify the 100-cm plant height? It is ridiculous. Last week, the House of Commons committee studying the bill was told that plant height has nothing to do with yield or potency but with the fact that most fences are more than one meter high — the inference being that the legislation is designed to keep marijuana plants hidden behind fences. It almost make sense — let’s keep pot plants out of the view of kids — but the bill does not even require that people who grow marijuana plants have fences. So it all really makes no sense at all.

Oh, and edibles — one of the most popular and healthiest ways to consume cannabis — are still illegal.

So, even under the new law, marijuana will still be criminalized — only now the government’s vice squad will need to carry rulers and learn to divine the difference between identical-looking legal and elicit marijuana.

There will be little saving of policing or justice system resources — resources that could be better used on education, harm reduction, rehabilitation and treatment.

The government spins bill C-45 as being all about protecting the children. The best way to protect kids is through education — cigarette-smoking rates are not at all time low because of the Criminal Code.

But back to the illegal gummies. The advice from Colorado was that edibles must be strictly regulated, not driven into the black market. Kids like to eat gummies, but criminalization means that the government can’t insist on child-proof containers, re-sealable packaging and other measures to protect our children. 

Why won’t someone think of the children?!?

Bill C-45 also continues to criminalize anyone under 18 who possess more than five grams of marijuana — an activity that will be perfectly legal for adults. Nowhere else in the Criminal Code is a youth criminalized for an act that is legal for an adult. The disproportionate criminalization of youth is simply counter-productive and an irrational criminal justice policy 

But the government says that this asymmetrical criminalization is necessary to deter kids from sparking a joint and thinking that they were the first to discover Pink Floyd. 

The drafters of the bill must have been high. 

A century of failed drug policy has demonstrated that criminalization is a flawed and ineffective mechanism to discourage drug use. Simply put, there is no reason to believe that making it a criminal offence for youth to possess more than five grams of marijuana will deter anyone from possessing marijuana.

Oh, and don’t forget the racism. The distinction between legal and illicit marijuana and the asymmetrical criminalization of marijuana will only serve to perpetuate disproportionate enforcement of the law on the young, marginalized and racialized members of our society.

Nor does the new legislation take any steps to remove the stigma of past criminal records for possession of marijuana through automatic or expedited pardons. An 18-year-old first-time offender who is convicted of simple possession of marijuana the day before Bill C-45 comes into force will be required to wait five years before being eligible to apply for a record suspension.

Bill C-45 does not only fail to protect youth from the harms of marijuana and the effects of criminalization but it takes no steps to correct past harms.

This is what happens when the government is dragged kicking and screaming to follow through on political promises.

And make no mistake — the Liberals' plan to legalize marijuana was a promise made for political not principled reasons. Remember, in 2009, Liberal MPs (including Justin Trudeau) voted for the then-Conservative government’s bill C-15, which would have imposed a minimum sentence for growing six pot plants. Bill C-15 passed the House, passed the Senate and was waiting for Royal assent when Parliament was prorogued in 2009 — in case anyone ever asks you to name one good thing about prorogation.

But, during the 2015 election, the Liberals were stuck in third place in the run-up to the election. A bold 360 on marijuana reform appealed to young progressive voters and was a convenient wedge to distinguish them from the front-running NDP’s proposed policy of immediate decriminalization and gradual legalization.

And then the Liberals won the election. And then they broke their promise to run only modest deficits, they broke a few tax promises and abandoned a clear pledge on electoral reform.

They had to keep their promise of legalizing marijuana. They did it grudgingly. To mute partisan attacks, they said it was all about protecting children.

Except it does not even do it that well.

And we got a mess.

Harshing the buzz on Bill C-45

Today I appeared before the House of Commons Standing Committee on Health to testify on Bill C-45 - the government's new legislation that will sort of, kind of, legalize marijuana.

When the bill was introduce in April I had some major concerns - and I still do.

There is some promise in Bill C-45 but there are also serious flaws and room for improvement.

Bill C-45 does not go far enough in removing marijuana from the Criminal Code and this failing diminishes the bill’s potentially positive results.

Bill C-45 is an unnecessary complex piece of legislation that leaves intact the criminalization of marijuana in many circumstances.

Under Bill C-45 an adult who possesses over 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 or possesses a plant 101 cm tall is a criminal.

This continued criminalization is inconsistent with a rational and evidence-based criminal justice policy and will only serve to reduce some of the positive effects of Bill C-45.

The disproportionate effect of continued youth criminalization is an anathema to criminal justice policy. Nowhere else in the Criminal Code is a youth criminalized for an act that is legal for an adult.

Further, Bill C-45 contains no measures to address the tens-of-thousands of Canadians who have been stigmatized through the war on drug’s counter productive imposition of criminal records. Nor does Bill C-45 take the opportunity apply evidence-based policy or Charter values to Canada’s criminal pardon rules.

Currently, an 18-year old, first time offender, who is convicted of simple possession of marijuana the day before Bill C-45 comes into force will be required to wait five years before they are even eligible to apply for a record suspension. That needs to change.

Canadian drug policy and legislation is in need of reform. The war on drugs has been a complete and abject failure. The social and financial cost of drug criminalization outweighs any illusory benefit. Every year, scores of young men and women are killed over relatively small amounts of marijuana — killed because marijuana is illegal, making it the focus of a vastly profitable and violent black market.

Bill C-45 may limit, but it does not end this problem.

Continued marijuana criminalization imposes unreasonable penalties on a relatively low-risk vice. In the real world, a drug record means limited employment opportunities, travel difficulties, and many other devastating collateral consequences.

These costs, more often than not, are borne by the most vulnerable members of our communities

Only full legalization, decriminalization, and regulation of marijuana will truly protect society and remove the unfairness, racism, and over-intrusion by state into an activity that - in the context of existing criminal laws - is relatively harmless.

You can watch my submission - but fair warning I was up late working on my written submission (and it shows)!

Even better on the eye - you can read my full submissions below or download them - here.