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.

Diab: A Broken Extradition System

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Canada’s extradition process is broken.

It does not take any expertise in extradition law to reach this conclusion. After all, you don’t need to be an expert mechanic to reach the conclusion that an abandoned jalopy is a piece of junk. Sometimes it only takes one tragic case to show that the law is an ass.  And unfortunately, the heartbreaking case of Hassan Diab is that case.

In 2008 France requested Diab’s extradition for his alleged involvement in the 1980 bombing of a Paris synagogue. In the early stages of the French investigation information from German and Israeli authorities linked Diab to the bombing. But the case against Diab was circumstantial and the investigation gathered dust for almost 15 years. But, the investigation was re-launched in 1999 after new information came to light. In reality, not that much had really changed. The case against Diab was still circumstantial and weak but French authorities had a new piece of evidence – a positive handwriting comparison analysis between Diab and the bomber.

And that is why in June 2011, after a lengthy and contentious extradition hearing in a Canadian court, Diab was ordered extradited to France.

The judge did not really have much of a choice in the matter. You see, the Extradition Act provides that a judge shall order the committal of the person into custody to await surrender if there is evidence that would justify committal for trial in Canada. And that is a laughably low standard. There just needs to be some evidence. That evidence can be weak, it can be unreliable, it can come nowhere close to quality of evidence needed to sustain a conviction. And unlike criminal trials, the extradition court cannot weigh the evidence. Even the weakest and most dubious piece of evidence must be given full weight by the judge.

If the extradition judge finds that this ludicrously low bar has been met, the case then moves to the Minister of Justice, who in the exercise of his or her discretion, can order extradition. There should have been no surprise that the Conservative Minister of JusticeRob Nicholson, quickly ordered Diab extradited to France.

Diab never did face trial in France. After 38 months of solitary conferment in a French dungeon, after missing the birth of his daughter, after losing years of his life, Diab was released and all charges were dropped by a French judge.

But Diab should never had been extradited in the first place, the case was just too shaky. But the extradition judge’s ability to prevent an injustice was handcuffed – he did not have the power to throw out a shockingly weak case.

And there was one other unique circumstance in Diab’s case – Canada appears to have been hell bent on extradition. Secret memos obtained last week by the CBC showed that senior Justice Department lawyers helped patch up the French case, misled the court, and suppressed evidence that could have proved Diab’s innocence.

So back to the handwriting analysis that prompted France’s extradition request almost three decades after the bombing. It turned out that the first positive handwriting comparison was based on handwriting samples that were not even Diab’s. The French experts had, in fact, compared the bomber’s handwriting with samples from Diab’s wife. One would be forgiven for thinking the positive match was a pretty much a forgone conclusion. The Canadian court had little time for this type of sloppy investigation and it looked like the extradition request would be denied. But then Canada’s lawyers stepped in. They were set on helping France and throwing their own citizen under the bus.

The secret memos show that Canada told France they needed to find a smoking gun. Canada told France to conduct a new handwriting analysis, this time with accurate writing samples. They also suggested Diab’s fingerprints should be compared with the bomber’s.

And then Canada helped France by adjourning the extradition hearing, again and again, to the give France time to fix their case. The extradition judge asked Canada’s lawyer Claude LeFrançois why France needed the adjournment. The CBC reports that court transcripts showed that LeFrançois told they court that he has no knowledge of what France was doing. Except he did. France was acting under his direction.

LeFrançois seems to have lied to the court, a cardinal sin, but one that gave French authorities the time they need to generate a second handwriting report. This report was not much better than the first. The court ruled that the handwriting analysis was based on questionable methods and on an analysis that seemed “very problematic” and was “susceptible to a great deal of criticism and attack.”

But in extradition hearings the court cannot discount dubious evidence and so, based on the problematic handwriting analysis Diab was committed to custody to await surrender to France.

But there was one fact that was hidden from both the court and Diab – the fingerprint analysis, suggested by Canada, were not a match to Diab. This could have been powerful evidence of innocence. But the report was buried by Canada’s lawyers and was never submitted to the court or even disclosed to Diab’s defense team.

Maybe the result would have been different if the fingerprint analysis had been disclosed. After all, as any honourable Crown prosecutor is well aware, the nondisclosure of exculpatory evidence has been identified as a hallmark of so many wrongful conviction cases. If the fingerprint analysis had not been kept secret perhaps the court would not have ordered Diab’s extradition or maybe the Justice Minister would not have been so quick to turn his back on a Canadian citizen.

Diab’s case was a completely preventable tragedy. But, there may be some good to come out of the tragedy. Chrystia Freeland, Canada’s Minister of Foreign Affairs, told the House of Commons that she was aware of the role government officials played in Diab’s extradition and that it was important that the matter be looked into.

Frankly, “looking into the matter” is the bare minimum. Canada must reevaluate the entire extradition framework. Courts should be given more latitude to refuse extradition in weak cases. And Canadian officials must be held to account for suppressing evidence and colluding with foreign governments. The actions and representations of Mr. LeFrançois should be closely scrutinized and if he or others were involved in suppressing exculpatory evidence or misleading Canadian courts there should be swift action.

And you can get ready to add Hassan Diab’s name to the growing list of Canadians who will be compensated for Canada’s role in perpetuating a miscarriage of justice.

There can be no repairing of the harm that Canada inflicted on Diab but we can begin to repair our broken extradition system.

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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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