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.

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.