AG Mulroney's big debut is a throwback fail

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Ontario’s new Attorney General Caroline Mulroney is going to face a steep learning curve when it comes to criminal justice issues. And she had better learn quickly because there is indeed a crisis in Ontario’s criminal courts. Cases take too long to complete, current systems and procedures are antiquated and inefficient and the chronic underfunding of the legal aid system has resulted in unprecedented levels of unfairness and injustice. 

Mulroney, by all accounts a skilled and intelligent lawyer, has never practised criminal law. In fact, she has never practised law in Ontario at all. It is difficult for a general to know what life is like in the trenches when they have never set foot on the battlefield. 

In addition to her inexperience, if Mulroney is to be successful, she will need to overcome the handicap of knee-jerk Conservative ideology. Heavy-handed criminal justice responses to complex social problems was a defining feature of the Stephen Harper government. For a decade, Ottawa ignored evidence-based justice policy in favour of tough-on-crime rhetoric. The results were predicable — unconstitutional laws, clogged courts, ballooning justice costs and a dumbing down of important social policy discussions. 

Unfortunately, it did not take long for Mulroney to give in to the siren song of simplistic, political, uninformed and counterproductive approaches to criminal justice. 

After a cluster of shootings over the Canada Day weekend, Toronto Mayor John Tory demanded that the provincial government “toughen up bail guidelines” for gun crimes. Tory doubled down on his bail rhetoric, saying, “We can’t have people getting out on bail 20 minutes after they’re arrested for using a gun.” 

He demanded that Mulroney instruct her Crown attorneys to deny bail to accused criminals with a prior record of convictions for gun crimes.

Before we get to Mulroney’s response, I’ll let you in on a secret: No one accused of a gun crime is released on bail 20 minutes after their arrest — not unless the accused is a police officer

Tory presented no evidence that the recent Toronto shootings were committed by suspects who had been released on bail. And he seemed content to ignore the fact that it is judges — not Crown attorneys — who make final decisions about bail. In fact, for years, Ontario’s Crown attorneys have been instructed that they must seek a detention order in all cases involving firearms offences, absent exceptional circumstances.

Mulroney could have responded to Tory’s counterfactual rhetoric with the authority and dignity that should come with her office. She could have told Tory that his “easy answers” are not supported by the criminological evidence. She could have pointed out that there is no evidence that any of the Toronto shootings were committed by someone out on bail for a previous shooting. She could have acknowledged that firearms offences are serious but pushed back on Tory’s strawman 20-minute bail arguments. She could have calmly explained that real solutions to gun violence involve building relationships with communities, tackling the hopelessness and poverty that plague our cities and progressive drug policies including robust addiction treatment.

Instead, Mulroney blamed the federal government, saying that both the city and the province are “dealing with a federal bail system that is letting too many violent criminals back into our streets. 

“This absolutely has to change,” she said. 

Mulroney then demanded a meeting with federal Justice Minister Jody Wilson-Raybould to discuss bail reform.

Mulroney has not elaborated on what kind of changes she would like to see at the federal level. Serious gun crimes and offences committed while on bail are already subject to reverse-onus bail provisions. This means that, unlike other offences, it is the accused who must satisfy a court that they are safe to release — not the state that must show why they should be detained. It is already the case that serious offenders will be detained if they pose a risk to the public. Heck, federal law also allows serious offenders to be detained even if they don’t pose a risk to the public but if their release would nonetheless undermine confidence in the justice system.

So, what sort of bail reforms does Mulroney want? 

My guess is that she has absolutely no idea. My guess is that Mulroney sees a political firestorm and also a political opportunity. Shootings are scary and, despite the fact that crime rates are at historic lows, it is easy for people to give into fear when shots ring out in their neighbourhood. It is easier for politicians to peddle tough-on-crime misinformation to voters than to explain complicated and nuanced long-term solutions. And what better way to satisfy a Conservative base then take disingenuous shots at a federal Liberal government.

It is disappointing that Mulroney’s first act as Ontario’s attorney general was to continue and encourage a troubling trend of cheap, reactionary and ineffective justice balderdash. Ontario’s justice problems are simply too big for the same old political solutions. If Mulroney can’t resist the temptation to fall into Harper-like justice policy, it will be a long four years, and at the end of her term, Ontario will be a more dangerous province. 

On gun violence, Jim Watson and John Tory shoot from the lip

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If a foolish consistency is the hobgoblin of small minds, it seems that the mayors of Ontario’s largest cities have been very, very consistent — at least when it comes to gun crime.

The problems in Toronto and Ottawa are similar: an increase in shootings. And like moths to a flame, John Tory and Jim Watson took to their bully pulpits recently to spitball solutions. Unfortunately, those solutions relied on the same tired trope that has failed our communities again and again: It’s time to get tough on crime.

Watson was responding to the release of the Ottawa police’s 2017 crime trends report, which indicated violent crime was up a staggering 20 per cent in the nation’s capital.

Watson was quick to call for more severe punishments for gun offences because harsher punishments would “act as a deterrent.”

All gun crime is serious but the statistics do little to make the case that Ottawa is a dangerous city. In fact, despite a small increase in “shootings” – which includes incidents regardless of whether someone is actually shot or not – Ottawa’s murder rate actually decreased in 2017. It appears most of the increase in violent crime was due to an almost doubling of uttering threat charges, not firearms offences.

It may be too much to expect statistical nuance from Watson. But we should insist that his proposed solutions have a basis in reality. So, the question is: Do more severe punishments actually deter crime? The answer is a resounding no.

In 2018, law professor and legal scholar Janine Benedet testified before the House of Commons Justice Committee that the biggest deterrence to criminal activity is the likelihood of apprehension, not the severity of punishment. This was not an earth-shattering revelation. Over a decade earlier, Canada’s pre-eminent criminologist, Dr. Anthony Doob, testified before the same committee, that “for more than 25 years, the overwhelming weight of evidence has been consistent with the conclusions that harsh sentences, in legislation or in practice, will not have any consistent or appreciable impact on levels of crime in the community.”

So, if there is no convincing evidence to suggest harsher sentences prevent crime, why is Watson peddling misinformation?

Things were no better in Toronto where Tory released a statement decrying Toronto’s shootings. Tory’s solutions were just as simplistic as Watson’s. Tory wants to “toughen up bail guidelines” for gun crimes. Tory doubled down on his bail rhetoric, saying, “We can’t have people getting out on bail 20 minutes after they’re arrested for using a gun.”

I’ll let you in on a secret, no one accused of a gun crime is released on bail 20 minutes after their arrest – not unless the accused is a police officer. Tory’s strawman argument is the height of irresponsibility and only serves to baselessly decrease confidence in the justice system. Tory presented no evidence that the recent Toronto shootings were committed by suspects who had been released on bail. And it is a fact that bail for firearms is always subject to the strictest of conditions and monitoring.

Tory says that “the answers are easy if we work together to deploy more police and support the police to actually get these thugs behind bars and keep them there.”

These “easy answers” won’t work. History has shown that more police officers, reduced civil liberties, and harsher punishments won’t reduce gun violence. In reality, these easy answers are merely seductive political tripe to be fed to a scared public desperate for solutions.

Real solutions involve building relationships with communities. Heavy-handed and racially charged police investigations techniques, such as carding, have been shown to erode the public’s willingness to report crime or to cooperate with the police. Real solutions mean tackling the hopelessness and poverty that plague our cities. Real solutions can be found in progressive drug policies and robust addiction treatment.

But Watson and Tory did not talk about any of these real solutions. Explaining and justifying evidence-based approaches to complex social problems is never easy. And so, we are left with Watson’s and Tory’s foolish consistency, which might help them get re-elected this year but won’t come close to making our communities safer.

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This article first appeared in the Ottawa Citizen

Dear Doug Ford....

June 11, 2018

The Honourable Doug Ford, MPP

Premier designate of the province of Ontario

Re: Efficiencies in the justice system

Dear soon-to-be-premier, 

A few short weeks before the election, you took the time to stop for a selfie with me on the streets of Toronto. I am sure that this happens quite a lot in your line of work. I doubt that you remember. But maybe you do. That day, my spouse had just finished a seven-hour canvass for the NDP and was covered in orange buttons. She was also politely heckling as we had our picture taken. I will admit, it was slightly awkward. But, even as we told you there was no way your party would ever get our vote, you took time to stop and talk with us. Then you gave me you cell number and told me to text you if I ever had any questions. I am told that this is a very Ford thing to do.

And then, a week later, I did text you. The Ottawa Police Association has just endorsed the Progressive Conservatives. Their key issues were rolling back legislative limits to carding and Bill 175, which strengthened police oversight. So, I sent a text to you to ask your position on these important issues. Within two hours, you called me back and told me that you did not support carding and that you would review Bill 175 line by line but that you were in favour of oversight to deal with bad police apples. Maybe you were just telling me what I wanted to hear, but as you promised a week before, on the streets of Toronto, you did call back.

I have never seen eye to eye with the federal Conservatives on justice issues. But I also have some big problems with what the Liberals have and have not done on that file. Justice, policing and correctional policy should not be a partisan issue. It is also no secret that much of your platform causes me serious concern — climate change is real, taxes are not bad and buck-a-beer is one of the pander-iest election promises ever. But you took the time to listen to me once, so I hope you will take the time to listen one more time.

Rational and responsible justice policy can be a hard sell and after decades of crime and punishment being used as red meat to throw to a hungry Conservative base, good policy decisions will take guts. But good policy can make our communities safer, benefit the economy and save buckets of money. 

So, for your consideration, here are my top five provincial justice suggestions.

Expand legal aid   

Look, we all know you are going to have to cut spending to balance the books. But, as a businessman, you know better than anyone that sometimes you need to spend money to save money. Ontario Legal Aid is underfunded. The poverty line in Ontario is hovering around $20,000. The cutoff for Legal Aid eligibility is just less than $17,000. This means that the poorest in our communities — even when facing a possible jail sentence ­— are denied assistance. This results in unfairness in our courts, but it also results in increased government spending. How, you ask? In our adversarial system, the courts will not let an impoverished and unsophisticated David battle Goliath. So, when legal aid denies funding, the courts order it. Either way, the government pays. But when the courts order funding, it costs Ontario more in lawyers’ fees, court time and other ancillary costs. Spending a little more on legal aid will actually save the province money, increase efficiencies in our courts and ensure fairness for the little guy.

Cancel the Liberals’ new $1-billion jail

The Liberals planned to build a bigger, $1-billion jail in Ottawa. Cancel it. 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 petty crimes. If you build it, they will fill it. Just look at the Toronto South Detention Centre. Built at a cost of more than $1 billion and opened in 2014, the South was billed as a modern miracle. Today, the South is a crowded “house of horrors.” 

It costs almost $80,000 a year to incarcerate one person, so let’s work to find alternatives that can save money.

Offer rehabilitation in our jails

We all have had friends and family that have been touched by addiction and mental health issues. We would never expect our family member’s addiction to magically get better without treatment. The sad fact is that most people in jail have some type of addiction or mental health issue. But our provincial jails don’t offer any meaningful counselling. In short, people usually come out of jail in worse shape than they went in. We should all stop feigning surprise that serious mental health and addiction issues are not spontaneously cured and inmates reoffend when those same people are warehoused and offered no support or treatment. Meaningful rehab programs in our jails would keep our communities safer, reduce recidivism and save money.

Modernize our courts

It is 2018, but our courts operate like it’s 1995. Paper rules the day; fax machines are considered cutting-edge technology and most business must be done in person. If you are looking for inefficiencies in our courtrooms, you won’t need to look far. The province can save money by digitizing dockets and court information. But, more importantly, we can also save time by using technology to eliminate redundant in-person court appearances for routine matters. As a bonus, these newly reclaimed court recourses can be used to move serious criminal charges through the court system more quickly.

Cut out the small stuff

This one will take some guts — but I hear you have those. When it comes to policing and prosecutions, cut out the petty crap so we can focus on the important cases. Our court dockets are overflowing with petty offences and victimless crimes. Not only does the obsession with petty crime interfere with the reintegration of offenders, it is expensive. As a businessman, the thought of spending thousands of dollars to prosecute and jail a homeless man for a $10 theft must turn your stomach. Focusing on the small stuff also squanders limited court resources we could be using to prosecute serious offenders. By refocusing how police and prosecutors use their time, we can save money and make our streets safer.

As you said, a new day has dawned in Ontario. And I have to admit that I am a bit fearful over how that day will turn out. The pull to continue business as usual in the justice system will be overwhelming. It will be easy to blindly support the police. It will be seductive to cut social funding. It will be mouth-watering to continue the partisan politicization of justice issues. Heck, even the Liberals in Ottawa have not had the fortitude to get it right.

But you said you would be different. 

And you have my number — so call me any time.

J. Michael Spratt, partner
Abergel Goldstein & Partners
Criminal Defence Counsel

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Corporate Get Out Of Jail Free Card Buried in Omnibus Bill

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A little over a year ago Justin Trudeau, the Prime Minister of Canada, stood in the house of commons and spoke some truths about omnibus legislation. Trudeau said that for many years the previous government used omnibus legislation as a way of avoiding debate. He complained that the Harper Conservatives would “put everything into a piece of legislation, whether it had links to it or not.”

Trudeau was right. Omnibus bills were abused by the Harper government to the detriment of democracy.  Omnibus legislation too often leads to a divisive all or nothing approach to the legislative process. This is especially true because when legislation is overbroad, filled with unconnected amendments and unfocussed, debate is difficult and evidenced-based study is next to impossible.

The Liberals said they would be different than Harper – in fact it was an explicit election promise – “Stephen Harper has also used omnibus bills to prevent Parliament from properly reviewing and debating his proposals […] We will not resort to legislative tricks to avoid scrutiny.”

A breath of fresh air. And a promise that was consistent with what a young MP from Papineau said in 2013, “Omnibus bills – I’d like to say I wouldn’t use them, period. There will always be big bills, but they need to be thematically and substantively linked in all their different pieces so that they form a piece of legislation. The kitchen-sink approach here is a real worry to me.”

That MP, of course, was also Justin Trudeau.

So, I did not even bother to read bill C-74, An Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures. Because why on earth would a bill all about implementing the budget include any substantive amendments to the Criminal Code?

Except bill C-74 does just that and the brand new criminal law is buried on page 527 of the 556-page bill. The amendment was so well-hidden that even Liberal MPs sitting on the House of Commons Finance Committee, which is currently studying the bill, were caught by surprise.

Because in addition to implementing the budget, the bill amends the Criminal Code to allow corporations to buy their way-out of a criminal conviction. This new legal loophole is called a remediation agreement. It would work something like this. Step one, a corporation engages in a criminal activity like a massive fraud or conspiracy. Step 2, the corporation is caught and charged criminally. Step 3, the prosecutor reviews the file and determines that there is a reasonable prospect of conviction. Step 4, If the corporation agrees that it committed a crime and pays back all of the ill-gotten profits then the prosecutor can ask the court to drop all criminal charges.

The formal Criminal Code remediation agreements created by bill C-74 proposes is novel.  Current remediation agreements – think of someone who comes clean about misstatements on their taxes – requires that the individual or organization self-disclose their offence prior to any investigation or charges. None of that is necessary with the Bill C-74 amendments. A corporation can sit back and wait to see if they are caught – and then worm their way out of criminal sanctions after their hand has been spotted in the cookie jar.

These new Criminal Code remediation agreements are not available to individuals, unions, or other public bodies – only rich corporations. A single mom, with no criminal record, who is struggling to put food on the table, and who did not report a social assistance overpayment can face criminal charges. I have represented dozens of vulnerable accused who find themselves in this situation. There are no remediation agreements for these people.

The Liberal’s budget implementation bill seems to put a premium on the interests of rich corporations. Formal criminal remediation agreements are legally novel in Canada and untested. The proposal could be fraught with constitutional issues. Perhaps it is poor policy not based on good evidence. But we won’t know any of that until it’s too late. The budget implementation bill is being studied by the finance committee – not the justice committee – and because this is an omnibus bill no experts have given evidence about the criminal code amendments.

There is a solution to these problems. It’s not rocket science. In fact, Justin Trudeau himself knew it back in 2013 – avoid the improper use of omnibus bills.

The criminal remediation agreement can easily be cut out of Bill C-74 and introduced in its own bill. Doing so won’t interfere with the implementation of the budget – ­ the purported purpose of the budget implementation bill.

Separate legislation would allow focused study. It would allow for expert testimony and evaluation at committee. It would allow every MP to know what the heck is in the government’s legislation. It would be more transparent and it would increase democratic accountability.

And it would probably result in a better law.

When Trudeau was railing against omnibus legislation in the House of Commons he made a simple wish. Trudeau told the Speaker of the House that he hoped that “future prime ministers will not make excessive use of omnibus bills […] to avoid problematic situations.”

I have the same wish, except I also wish that current prime ministers did the same.

Time for the Law Society to turn its principles into action

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The 19th century French ecclesiastic, preacher, journalist and political activist Henri-Dominique Lacordairefamously said, “between the rich and the poor, between the master and the servant, between the strong and the weak, it is freedom that oppresses and the law that sets free.”

When viewed through Lacordaire’s lens the purpose of law in a free and democratic society is to liberate. Our laws create a safe and just environment in which human conduct is regulated and power is constrained so that maximum freedom and safety is attained by all.

The legal profession plays a pivotal role in the creation and preservation of an equal and just society. That is why it was such a head scratcher when a segment of the profession lost their minds over the law society’s proposed statement of principles. In case you have forgotten, after years of study, the law society mandated that all licensees make a commitment to some simple principles: not to discriminate, abide by workplace policies, promote equality and observe human rights legislation.

It is a good thing that refraining from chicken-little-style, hyperbolic rhetoric was not a principle the legal profession was being asked to disavow because the law society’s initiative was described as chilling,  Orwellian and worse than cold war McCarthyism.

These reactionary criticisms all missed the mark. No lawyer should have difficulty in pledging to uphold the important principles of equality and justice – this is, after all, is what most of us do, on a daily basis. No one, not even the most contrarian lawyer, should have any qualms about signing off on the oh-so-controversial principle that discrimination and racism are bad.

The real criticism of the law society is that statements of principle can only go so far to advancing the cause of equality and fairness. Sometimes action is needed. The law society managed to whip up a controversy with its very modest proposal but in the end the statement of principle is not much more than yet another form that most lawyers will robotically sign.

But the law society will have an opportunity to put their purported principles into action. On May 9, 2018, a motion will be made to force the law Ssociety to pay more than just lip service to fairness and equality when examining a prospective licensees good character.

You see, every lawyer must be of good character to gain admission to the bar. Despite the fact that the law society itself has found little evidence that past misconduct is a meaningful predictor of future behavior, the good character requirement is designed to protect the public, to maintain high ethical standards and to maintain public confidence in the legal profession. And despite the fact that there are many lawyers who have skeletons in their closet, including criminal convictions, the law society defines good character pretty broadly to include an examination if someone has ever been found guilty of or been convicted of any offence under any statute (excluding speeding and parking ticket).

This may seem to make sense until you actually reflect on the statement of principles we all had to sign and then it all starts to seem unfair. Because the good character requirement disproportionately impacts indigenous people. And that is what the May 9 motion is all about.

It is a notorious fact that indigenous individuals are over-represented in the justice system. This means that, despite the fact that indigenous people are not more likely to break the law than anyone else, they are more likely to be stopped by the police, prosecuted, and punished. The Supreme Court of Canada acknowledged this reality almost 20 years ago in the ground-breaking Gladue decision. 

The Supreme Court has also recognized that the history of colonialism, displacement, and residential schools can lead to higher rates of indigenous poverty and marginalization and that those historic factors provide an important context for understanding an indigenous individual’s circumstances. 

The May 9 motion calls for the law society to take into account these same factors when examining the good character requirement and to review its evaluation process. In simple terms the motion seeks to compel the law society to buy in to its own statement of principles.

Removing and contextualizing systemic barriers that operate against Indigenous people is vital in order to foster a diverse and representative legal community. And it is particularly important given that the Truth and Reconciliation Commission identified that indigenous communities often harbor a distrust of Canada’s legal system. I wonder why.

Imagine a young, Indigenous law student who has overcome significant adversity, obtained an increasingly expensive legal education, landed a scarce articling position, all despite historic and systemic disadvantages. Imagine doing all of this in the face of uncertainty as to whether the law society will even admit you to its privileged ranks because of past run-ins with the law – run-ins that may have never occurred but for your Indigenous background. And then imagine the continued stigma of an opaque good character evaluation process that turns a blind eye to the important context of systemic barriers.

It is actually unimaginable that an institution so important to the creation and maintenance of a safe and just environment could ever operate in such a manner. 

It is time for the law society to put into practice the 20-year old lessons delivered by the Supreme Court of Canada in Gladue. It’s time the law society signed onto its own statement of principle.

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