Justice by popular opinion

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.

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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?

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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 real is irrelevant. Facts are facts and Wilson-Raybould’s survey is purely an exercise in delay and political cover.

Setting criminal justice policy based on the compass of public opinion is a dangerous game that risks undermining fairness and the rule of law. Interpreting constitutional rights on the whims of the majority fundamentally misunderstands one of the purposes of Canada’s Charter of Rights and Freedoms: to protect the weak from the powerful and minorities from the whims of the majority.

But let’s take a step back and review minimum sentences so we can fully understand Wilson-Raybould’s lack of principled leadership.

Minimum sentences remove the usual judicial discretion to impose a sentence that takes into account the particular circumstances of the offender and of the offence. The result in many cases — grossly disproportionate sentences that are “so excessive as to outrage standards of decency” and are “abhorrent or intolerable” to society. Those are the Supreme Court's words.

Mandatory minimum sentences also result in the insidious transfer of discretion from judges to the Crown prosecutors — who have the discretion to drop a minimum sentence in exchange for a plea to a lesser charge. This sort of deal, dangled before an incarcerated accused, can result in a perverse inducement for the innocent to plead guilty. 

The costs of minimum sentences — both financial and social — come with little benefit. Evidence shows that minimum sentences don't deter crime, reduce recidivism rates or make our communities any safer. 

These are not matters up for debate. These are facts confirmed by decades of research. These are facts outlined in hours of evidence presented at parliamentary committee hearings. 

In 2007, one of Canada’s most respected criminologists, Anthony Doob, testified before the House Justice committee and summed up the state of affairs, saying, “The evidence of [mandatory sentences'] ineffectiveness is clear. Numerous studies have been carried out in various countries demonstrating that mandatory minimum penalties of this kind do not deter crime.”

And Wilson-Raybould knows this. In 2016, the Department of Justice commissioned a meta-study of the evidence on the impacts of minimum sentences.

The government’s own review found that “harsh penalties — like MMPs — are ineffective at deterring crime” and detailed that “experienced practitioners and social science researchers have long agreed, for practical and policy reasons [. . .], that mandatory penalties are a bad idea.”

The 2016 report went on to find that most of the recent academic discussions found that increased reliance on minimum sentences as evidence have “come not from an empirically or evidence-based need for more punitive policy, but from political maneuvering.” 

The 2016 review found that when minimum sentences are evaluated in terms of their stated substantive objectives, they do not work. 

But even in 2016 this information was not a revelation. In 2007, the Library of Parliament clearly set out the potential constitutional difficulties, the lack of utility and the negative impacts of mandatory minimum sentences. The Library of Parliament even quoted a Canadian meta-analysis that found there was “little difference in general recidivism rates, regardless of length of incarceration or whether the offender was given a prison or community sanction. In fact, prison produced slight increases in recidivism.”

But this should come as no surprise for those truly motivated by evidence-based policy. After all, a 2005 Justice Department Report found, after a review of the evidence, that “minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits.”

So why is the Department of Justice now conducting a public opinion poll that includes questions asking for the subjective opinions on the empirical question of whether mandatory minimum sentences deter crime?

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The evidence on the lack of effectiveness and costs of minimum sentence is clear. In 2016, Wilson-Raybould said that minimum sentences were a priority. After almost a year of inaction, that priority is manifest in a concern about public opinion? 

But perhaps this should not be a surprise given that in 2016 The Canadian Press reported that the Liberals were eyeing a “politically viable strategy” to bring changes to minimum sentences.

After a decade of ideological criminal justice policy at the hands of the Harper government, swift and principled action is imperative. Inaction means unjust court results, less safe streets, increased court delays and ballooning costs.

Minimum sentences represent the lowest-hanging fruit for meaningful justice reform. Their counterproductive and negative impacts are well documented. 

This is not a matter for debate. The solutions are known and uncomplicated.

All we need now is a justice minister with the principle and conviction to take action. Unfortunately, it seems that piece is still missing.

Dislike of Khadr settlement does not entitle critics to disregard law or facts

Omar Khadr is a polarizing figure. To some, Khadr is a child soldier who was brainwashed by his parents and then abandoned by the Canadian government in the notorious and illegal Guantanamo Bay detention camp in Cuba. To others, Khadr is a terrorist deserving of no sympathy.

So, it should come as no surprise that the Canadian government’s apology and payment of $10.5 million to Khadr as compensation for his ill treatment was seized upon by many as a convenient political wedge.
 
But first, some history.
 
Khadr is a Canadian citizen. His father, Ahmed, was a card-carrying terrorist who was affiliated with al-Qaida. This is how a 15-year-old Khadr ended up on a battlefield in Afghanistan following the Sept. 11, 2001 terrorist attacks in New York City. Khadr was taken prisoner by the United States on July 27, 2002 following an intense firefight. He was seriously injured in the battle. The United States alleged he had thrown a grenade that killed an American soldier.
 
Khadr was detained at Guantanamo Bay for the next decade. It was during this time that Canadian officials interrogated Khadr and passed on the fruits of their interrogation to U.S. officials.
 
In two separate decisions, the Supreme Court of Canada found that the Canadian interrogations violated Khadr’s Charter rights and that the information derived from that illegal interrogation contributed to Khadr’s then seemingly indefinite detention at Guantanamo Bay.
 
Despite the final damning judgment by Canada’s highest court in 2010, it took Stephen Harper’s Conservative government almost two years to repatriate Khadr.
 
Khadr then sued the government for $20 million in compensation for the wilful violation of his Charter rights, negligent investigation, conspiracy with the United States in his arbitrary detention, torture, cruel, inhumane and degrading treatment, false imprisonment, intentional infliction of mental distress and failure to comply with domestic and international human rights obligations.
 
After a decade of losses in various legal forums, the government recently settled Khadr’s lawsuit and issued an apology.
 
And then the Conservative pundits and members of Parliament sprang into action attacking Trudeau’s payout to a “convicted terrorist.” It would have been naive to expect anything different — after all, there are votes to be had and fundraising to be done.
 
The anti-Khadr talking points have been remarkably consistent: The Charter does not apply outside Canada and if it does there were only limited Charter violations, critics of the settlement claim. And in any event, the pundits claim, Khadr is morally guilty and the author of his own misfortune — he is an admitted terrorist. Besides, the Supreme Court never ordered a secret compensation deal, they claim.
 
So let’s take these talking points apart, piece by piece.
 
It is clear that in Khadr’s case the Charter does indeed apply.

Critics of the settlement have pointed to the 2007 Supreme Court ruling in R. v. Hape where the court found that the Charter did not apply to the search and seizure of evidence by the Royal Canadian Mounted Police in the Turks and Caicos.  
 
But Khadr’s critics must not have read past the first paragraph of the Hape decision because the court went on to carve out an exception to the principle of comity. 
 
The court was clear that the Charter does apply if Canadian officials operating in a foreign territory participate in activities that are contrary to Canada’s international human rights obligations.
 
In 2008, the Supreme Court found that that was exactly what Canada had done. This should have come as no surprise as the United States Supreme Court had already found that the procedures in place at Guantanamo Bay violated the Geneva Conventions. Consequently, Khadr was detained in violation of his fundamental human rights protected by international law and Canada’s actions contributed to his ongoing detention.
 
So it is clear that the Charter does indeed apply. Khadr’s critics say, however, that any violations were minimal — Canadian officials did not set up and run Guantanamo Bay, they only travelled to Cuba to ask Khadr some questions.
 
Except that is not what the Supreme Court found in 2010.
Canada interrogated Khadr with the full knowledge that he was being detained in a prison camp that violated international law and that Khadr had been subjected to a program of sleep deprivation designed to make him less resistant to interrogation.
 
The United States military commission described Guantanamo’s sleep deprivation programas “a measure designed to disorient selected detainee [. . . ] disrupt their sleep cycles and biorhythms, make them more compliant and break down their resistance to interrogation.” The commission went on to find that the program “was intended to create a feeling of hopelessness and despair in the detainee.”
 
Canada’s Federal Court of Appeal found the program of sleep deprivation to be cruel and abusive treatment contrary to the principles of fundamental justice.
 
Canada knew that this is what had been done to Khadr prior to their interrogation. In other words, Canada was complicit in torture.
 
But it gets worse: Canada then provided the fruits of Khadr’s interrogation to U.S. authorities. The Supreme Court found that Khadr’s statements — obtained in violation of international human rights law — contributed to his continued detention, thereby impacting his liberty and security interest.
 
Only the cruelest and most disingenuous partisan could claim that the violations of Khadr’s Charter rights by Canadian officials were limited.
 
And so the Khadr critics fall back to the moral high ground: “Khadr is a terrorist, this is why he was detained and questioned in Guantanamo. His actions contributed to the situation, so there should not be any compensation.”
 
Let’s leave aside the fact that the precise level of Khadr’s moral culpability is very much in doubt. The evidence that Khadr threw the grenade that killed the U.S. soldier is conflicting. Khadr’s admission of guilt was extracted in oppressive and torturous conditions. This confession would never be admissible in a Canadian court.
   
But none of that actually matters. 
 
Khadr is being compensated for Charter breaches that occurred after the events on the battlefield. Khadr’s acts may have contributed to his detention, but he did nothing to bring about his own torture.
 
Conflating the events on the battlefield and the violations of international law that occurred afterwards may be self-serving, but it misses the point.
 
Charter protections do not evaporate after a finding of guilt. We do not and should not detain the guilty in illegal and inhumane conditions. We do not abuse or torture the guilty and then claim they were the cause of their own misfortune.
 
The Charter protects the innocent and guilty equally. 
 
And then the critics have one last argument to fall back on — the government arrived at the compensation number by some kind of voodoo. The Supreme Court held that Khadr’s rights were violated, but it did not say he should receive millions of dollars.
 
That is true. But then again, the Supreme Court was never asked to rule on monetary compensation. This issue was not before the Supreme Court.
 
Experienced counsel through court-guided mediation arrived at the compensation amount.
 
Could the amount of compensation have been different after a trial? Of course it could have been. Damages would have likely been higher and costs would have been ordered against the government. According to legal experts, the estimated bill to fight a losing court battle would have been between $30 million and $40 million.
 
It is perfectly acceptable to be uncomfortable with the Khadr settlement. It is fine to say the government should have litigated the issue to the bitter end. But a dislike of Khadr and distaste for the settlement does not entitle critics to disregard the law or the facts.
 
The simple fact is that the Khadr critics’ ideology is irreconcilable with the law and the facts. The repetition of ill-informed and disingenuous talking points by the Conservative pundits and members of Parliament is nothing but a dishonest attempt at political gain that will only serve to undermine respect for human rights and the rule of law — and no settlement can compensate Canada for that crime.

Is it time to re-evaluate 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 tried before a jury — the Crown and defence each receive 20 pre-emptory challenges. Either side can, without explanation, excuse up to 20 jurors. In Canada our knowledge about individual jurors is limited to their name, postal code and a general description of their occupation. So how are decisions made about whom to exclude? I will let you in on a secret — it is a mixture of superstition, voodoo and prejudice.

A juror does not look my client in the eye — challenge. A juror has an air of pretension — challenge. The juror walks into court with a right-wing newspaper — challenge.

But there can be more insidious examples of the use of pre-emptory challenges. In one of the murder trials I conducted the Crown was content with one middle-aged, female schoolteacher but challenged the next middle-aged, female schoolteacher. The only difference between the two was race — it was the black teacher who was challenged. This fact did not escape the notice of my client, who as it turns out, was black.

In some cases jurors can be asked if they are racist. This is not an oversimplification of the question — literally each juror is asked if they are racist. The answer is yes or no. This is the sophisticated system courts have developed to weed out racial bias.

What we do know about the composition of our juries is that they are usually middle class, white and old.

Half of any jury pool will be excused for financial hardship. Single parents, the self-employed, or the working poor cannot afford to be on a jury. In Ontario, jurors are usually paid $40 starting only on the 11th day of trial, which increases to $100 a day if the trial goes longer than 50 days. The only people who can afford the privilege to sit on a jury are government workers, retirees or the wealthy.

Our jury pools are also not representative of Indigenous Canadians and other minority groups. Being judge by a jury of your peers may be an aspirational standard but has little foundation in reality.

So, we know almost nothing about individual jurors and we know that the typical jury pool is not representative of most accused persons (unless they are middle-aged government employees).

What we do know is that jurors don’t have formal legal training. And that is bonkers.

Juries are the judges of the facts of a case. They apply those facts in the context of complicated legal principles to arrive at a verdict. How does a jury know what the law is then? They receive instructions from the judge — a few pages read to them at the end of an exhausting trial. What takes law students years to learn in school and lawyers decades to master in court is absorbed by a lay jury in a few paragraphs.

This is the fiction that our system is built on.

There can no question that, from time to time, juries get it wrong and misapply the law. It is common sense that occasionally juries base decision on prejudice and stereotypes. After all, even highly trained judges make mistakes. The difference between juries and judges is that judges provide detailed reasons that can be reviewed. Juries on the other hand deliberate in secret and provide a binary answer — guilty or not guilty. Juries don’t provide reasons for their decision.

Who knows what juries talk about in their deliberation room — it is a crime to ask them. But maybe we don’t really want to know how that sausage is made.

Twain was right to question the quality and efficacy of the jury system.

History and tradition is a lazy justification of the status quote. Twain knew this and commented: “It is a shame that we must continue to use a worthless [jury] system because it was good a thousand years ago ...”

Twain was right — perhaps it is time for trial by jury to join trial by ordeal as a criminal justice relic.

The Ghomeshi rules: Bill C-51 creates 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 there was a significant change to sexual assault laws buried in the middle of the bill. This proposed change was not just about modernization. It was not just a simple update. And it made its way into few new headlines.
 
Under the new law, an accused person will be required to disclose to the Crown and the complainant any records that will be used to challenge the complainant’s credibility or reliability.  
 
Let’s cut to the chase — these are the new Ghomeshi rules. 
 
In the Ghomeshi trial, defence counsel was in possession of various emails, text messages and other electronic records that contradicted large sections of the complainant’s evidence. The inconsistencies between the complainant’s evidence in court evidence and the private messages played a large part in Ghomeshi’s acquittal.
 
People did not like that.
 
So, now, if the defence has a record that shows the complainant is lying or misrepresenting the evidence, that record must be disclosed in advance. A lawyer is then appointed for the complainant who is granted standing to argue for suppression of the defence evidence.
 
In other words, the legislation will tip off a liar that records exist exposing their lie and then gives them a chance to come up with an explanation. 
 
The new law creates an unprecedented case of reverse disclosure. In all other cases, it is the state that must disclose evidence, but not anymore. Now, the defence must not only disclose its evidence and litigation strategy but must also argue to admit evidence that would otherwise be relevant and material.
 
There are serious constitutional questions about this radical new law — but not according to the government.
 
In its Charter Statement defending the new bill, the government argues that this is just like the Supreme Court case of R. v. Mills — so everything is fine.
 
In Mills, the court upheld Criminal Code amendments from the 1990s that governed the forced disclosure of private records relating to the complainant held by third parties. Millswas about preventing defence fishing expeditions for private information through the coercive power of a subpoena. 
 
The new law is nothing like the case of Mills. The new law applies to relevant and otherwise admissible material already in the accused’s possession. The accused is not relying on subpoena and forced disclosure. There is no fishing expedition. There are not the same privacy implications as in Mills — that horse has already left the barn. 
 
Wilson-Raybould’s Charter Statement creates a false analogy to justify a major and potentially unconstitutional change in criminal procedure. The Charter statement is otherwise very thin gruel — devoid of any meaningful analysis or substance. 
 
So, in the end, Wilson-Raybould has sold us a bill designed to modernize the Criminal Code and repeal unconstitutional laws that actually leaves unconstitutional minimum sentencing on the books and makes wrongful criminal convictions easier.
 
In other words, this is the perfect Harper Conservative justice bill: There are major changes to historic criminal law principles deep within the proposed legislation; the buried changes are a clear reaction to a highly public and unpopular court case; and the constitutional defence of those changes is non-existent.
 
But let’s ignore that because at least we can all practise false witchcraft free from prosecution.

No one truly knows a nation until one has been inside its 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 the cold floor next to the toilet. Lockdowns are frequent. Family and lawyer visits are often cancelled. Inmates are forced to pay exorbitant phone rates to call their lawyers. Inmates are often placed in oppressive segregation cells for weeks or months at a time. Food is often uneatable, lacking in basic nutrition and in short supply — many inmates need to fight in order to eat. Violence is common. 
 
Rehabilitation programming, addiction treatment and mental health treatment are non-existent.
 
In short, people come out of our provincial jail in worse shape than they went in. We should stop feigning surprise that serious mental health and addiction issues are not magically cured and inmates reoffend when those same people are warehoused and offered no support or treatment.
 
Our correctional policies do not result in rehabilitation, do not result in lower rates of recidivism and do not result in increased public safety.
 
And we gladly pay for the privilege — almost $80,000 a year to incarcerate one person.
 
So what is the Ontario government’s solution to this problem? It wants to build more and bigger jails.
 
Marie-France Lalonde, Ontario’s corrections minister, recently announced plans to build two new jails — including a new and bigger 725-bed detention centre in Ottawa.
 
The new Ottawa jail could cost more than half a billion dollars to build and more than $10 million a year to operate. There have been no announcements of any funding for rehabilitation or education programs or any other improvements that would help meet the United Nations’ Mandela requirements.
 
The province is just building a bigger warehouse.
 
The new jail announcement represented a dramatic policy change for the Ontario government. It was only last year that Ontario’s attorney general (then Ontario’s corrections minister) Yasir Naqvi said that a new and bigger jail in Ottawa was a too simple solutionthat would fail both taxpayers and society as a whole.
 
So what changed between Naqvi’s comments and Lalonde’s announcement that Ontario was moving forward with the “too simple” solution?
 
Maybe there is a provincial election approaching and funding announcements are an easy way to create jobs and avoid difficult political decisions. No government wants to be labelled as “soft on crime” with an election on the horizon.
 
Or maybe Lalonde just lacks vision, leadership and knowledge.
 
There is no doubt that money needs to be spent to bring our treatment of prisoners up to the Mandela standards. But we don’t need bigger jails — we need better and smaller jails.
 
The simple fact is that there are too many people in jail. We incarcerate a disproportionate number of poor, marginalized and racialized individuals. Our jails are not bursting because of an increase in violent crime — actually, violent crime rates are approaching all-time lows. Our jails are bursting because we are locking people up for property offences, administration of justice offences and minor offences.
 
We lock people up because they are poor, homeless, addicted, sick or marginalized.
 
If you build it, they will fill it. Just look at the Toronto South Detention Centre. Built at a cost of more than a billion dollars and opened in 2014, the South was billed as a modern miracle. Today, the South is a crowded “house of horrors”.
 
The same fate awaits the new jails announced by Lalonde.
 
Building new and bigger jails should not be trumpeted as a success; on the contrary, it is an admission of failure. Every dollar spent on extra jail capacity is a dollar that will not be spent on crime prevention, mental health workers and rehabilitation.
 
But we continue to throw good money after bad to maintain the status quo. 
 
I will let you in on a dirty secret: Our criminal justice and correctional system is overly punitive, racist, short-sighted, draconian, cruel and counterproductive.
 
And that is how we as Canadians should be judged.