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.

Judicial Poetry

Judges have a duty to provide reasons for their decisions. This would seem to be self-evident. But it wasn’t — at least not until 2002 when the Supreme Court of Canada was called upon to review the sufficiency of the trial judge’s reasons for convicting a young man named Colin Sheppard.

At trial Sheppard had been convicted of stealing two windows. There was no physical evidence linking him to the theft —- no fingerprints, no DNA, nor any video surveillance. Nothing.

The only evidence of guilt came from his estranged girlfriend — who went to the police two days after her “tempestuous” relationship with Sheppard had ended. She said that he had confessed to her and told her he had stolen the windows.

Sheppard testified and denied he committed any crime. The case was laughably weak. But Sheppard was convicted. The trial judge could have tweeted his reasons: “Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged.” Seriously — that is all of it — 36 words.

The Supreme Court, in R. v. Sheppard 2002 SCC 26, overturned the conviction saying that Sheppard “still does not understand the basis of his conviction and neither do we.” It is really about common sense.

The importance of reasons for judgment cannot be understated. Detailed reasons are the main way for a court to communicate with the parties to the litigation. At the end of a case there should be no doubt why and how a court reached the decision it did. Reasons also act to hold our judges to account.

Judges are human and can make mistakes about the facts or err in their application of the law. Detailed reasons are the only way appeal courts review decisions from lower counts to ensure that justice has been done.

The Supreme Court also noted our courts owe a duty to the public to provide reasons. Justice must not only be done but must be seen to be done. This is especially true when courts are called upon to deal with matters more serious than the theft of windows.The Supreme Court’s direction in the Sheppard case is a message that many Canadian judges have taken to heart as an increasing number of judgments are being written in plain, accessible, and powerful language.

Take the example of “Canada’s poetic judge” Justice Shaun Nakatsuru who delivered a moving judgment in sentencing a young Aboriginal offender who had pleaded guilty to a string property offences. Justice Nakatsuru began the decision by noting the importance of using plain language —- his audience in this case the Aboriginal offender.

Justice Nakatsuru wrote of the bleak repetition of offences, the frustration of periods of the offender’s personal successes followed by repeated failure, the systemic failures of the justice system, and the all-too-common discrimination and marginalization faced by indigenous Canadians.

Justice Nakatsuru wrote: "I find that [the offender] appears before me as a dispirited man. He has really no self-esteem. He does not think of himself as important. As a result, he does not seem to care about what he does. The harm he has caused to others. The harm he has caused to himself. His spirit has fallen ill. Although I cannot say exactly how or describe it in easy to understand words, it strikes me that [the offender] is a metaphor for what negative effects colonization has had on many First Nations people and communities."

In the end Nakatsuru departed from the usual sentence of jail noting that the offender had come to a point in his life where he was ready to change. The decision ended: “When an offender has come to this point, no matter how long, tortuous, or difficult the path taken to get there, there cannot be sadness or disappointment. There can only be hope.”

The decision was celebrated as a high-water mark in accessible judicial communication.

And then Justice Nakatsuru did it again. This time writing another powerful decision granting bail to another man, this time accused of very serious offences. Justice Nakatsuru ended that decision saying: “I hope this written decision sheds more light into why. I hope this decision also tells others why in some cases, the indigenous accused must be treated differently than other non-indigenous accused. I believe this is the right thing to do.”

This is the message of Sheppard — it’s all about communication. But there are risks in turning legal decisions into works of commentary.

Justice Alex Pazaratz used a divorce judgment as an opportunity to blast the legal aid system and wasted resources. “The next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it,” wrote Justice Pazaratz, continuing, “It can’t possibly be true. Not if they’re funding cases like this.”

Justice Pazaratz followed that opening salvo with 34 paragraphs of blistering and sometimes sarcastic criticism. I suppose from the bench it all seemed simple. You see the case took a long time to complete. This appears to have annoyed Justice Pazaratz. He wrote, “They have no children. No jobs. No income. No property. Nothing to divide. It should be a simple case.”

But sometimes cases are not as simple as they seem.

The husband and wife had emigrated from Iraq but Justice Pazaratz's decision devoted more page space to an accounting of court costs and detailing notions of taxpayer protection than to any recognition that language, culture, and unfamiliarity with the legal system may have influenced the unfolding of the case.

Oh — there were also allegations of domestic abuse — but Justice Pazaratz wrote, “It’s not uncommon that separated couples disagree about who did what.” But this aspect of the case apparently merited little other judicial consideration.

The Pazaratz decision may have attracted cynical page clicks but in the end it likely did little to educate the parties or public about our court system. Since Sheppard there has been an evolution in judicial writing. Written decisions are more publicly accessible than ever before. But our courts must remember that there is a fine line between plain language and inappropriate commentary, between style and substance, and between communication and advocacy.

Because at the end of the day the courtroom is not a theatre and not all poetry is beautiful.

The Liberal Marijuana Buzz Kill

The rollout of the Liberals’ Cannabis Act was a grim affair. It seems that never more grudgingly has a government followed through on an election promise. 

There was no talk of personal freedom or harm-based principles and little recognition of the lives ruined through criminal prohibition. It was all about the easier-to-sell political narrative of keeping our kids safe.

I mean for god’s sake, Prime Minister Justin Trudeau’s go-to pot guy, former police chief Bill Blair, spoke about kids buying pot from gangsters in stairwells. The only thing this showed was that Blair does not know anything about how to buy weed (hint: most kids hit up their friend’s big brother or their hippie neighbour first).

But after electoral reform, modest deficits and a dozen other broken promises, the Liberals did not have much choice but to legalize marijuana. Breaking their pot promise would have had their credibility go up in smoke. 

So, marijuana will soon be legal in Canada and our kids will all be safe again — kind of. 

Let’s start with the good news before I harsh your buzz. 

If this legislation passes, no longer will it be a criminal offence for adults to possess 30 grams or less of pot in a public place. And we can all grow up to four plants without risking jail time. And even kids who illegally possess a joint or two will not face the life-long stigmatization of criminal justice sanctions.

This is all fantastic and makes perfect sense given that marijuana is a relatively harmless substance. Consenting adults should be able to engage in activities that do not harm others without the fear of criminal prosecution. Even those who light their hair on fire over the potential of reefer madness have come to accept that divergent approaches to regulating alcohol and marijuana is simply unjust.

Ask anyone who regularly sits in Canadian courts — alcohol is the driving force behind so many violent and dangerous offences. Bar fights, domestic assault and acts of dangerous mischief almost always have one thing in common — and it is not pot. Marijuana does not lead to violence, unless, of course, we are talking about the hundreds of deaths caused by gang turf wars and high-risk drug robberies.

The fact is that the war on drugs has been an abject failure: addicts are criminalized, public health suffers, criminal organizations profit, the young and marginalized are stigmatized and our courts grind to a halt under the weight of morality prosecutions.

Legalization is a good thing.

But the Liberal government’s first grudging step toward a rational drug policy risks falling flat.

Under the Liberals’ plan, some marijuana will be legal but not all. An adult who grows four pot plants is growing legal marijuana. But as soon as any one of those plants exceeds 100 centimetres in height, the pot magically transforms into an illegal substance. One centimetre can make the difference between legality and a criminal offence punishable by up to 14 years in jail.

Marijuana purchased from a licenced producer will be perfectly legal. But marijuana of the same quality purchased from a non-government-approved producer could result in a five-year jail term.

Even under the new law, marijuana will still be criminalized — only now the government’s vice squad will need to carry rulers.

But how will the government be able track marijuana to tell the difference between a joint worthy of a bag of Doritos and one worthy of jail time? 

Building on the cost effectiveness and success of the long-gun registry, the new cannabis legislation empowers the government to establish a marijuana registry. The registry will track marijuana to ensure that you are smoking government-approved weed.

There are also few details about just whom the government will approve to grow and sell legal marijuana. The legislation does give us some hints; for example, it allows the government to reject anyone with a criminal record for marijuana offences. 

There is no mechanism in the legislation to expunge the records of people guilty of an activity that is now legal. 

So if people with records for marijuana offences are not approved, who will sell us legal weed? Well, big business is poised to fill the void. It should not escape notice that Anne McLellan — former Liberal minister of Justice and head of the Task Force on Marijuana Legalization and Regulation — is also a senior advisor at Bennett Jones LLP, which has close ties to the burgeoning marijuana industry. 

Large corporations — one of which was founded by the CFO of the Liberal Party of Canada — stand to reap the benefits of legal pot.

But this is where details get a bit hazy, because although the cannabis legislation is 150 pages of unnecessary complexity, much of the implementation, regulation and details are being left to the provinces.

And the provinces are free to tighten the rules — increase the age of legality, restrict access and set prices.

In reality, the Liberals kept a third of their promise, downloaded a third to the provinces and ignored the last third.

At the end of the day, marijuana is not totally legal. It is still being treated differently than more harmful substances, there will still be a black market and our kids may still be put in danger by Blair’s imaginary stairwell gangsters.

Police Accountability: There is no right to silence

Short years before his assassination Robert Kennedy, who at the time was United States attorney general, observed, “Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on.”

At the time Kennedy was of course embroiled in the fight against organized crime and police corruption. But his words apply equally well to the city of Ottawa’s police force.

You see, there is a problem in Ottawa ­— our police force is embroiled in controversy: racist Facebook rants, repeated judicial findings of rights violations and the high profile beating death of Abdirahman Abdi.

The issues with Ottawa city’s police runs deeper than rogue officers and isolated incidents. Ottawa’s problems really begin in the corridors of power as our civic leaders, including Ottawa’s Mayor Jim Watson and the chief of police Charles Bordeleau, appear content to remain silent in the face of police misconduct.

Let’s start with the tragic case of Abdi. In July 2016 Ottawa police were dispatched to a local coffee shop where it was reported that a Somali man had groped a woman. When police arrived they engaged in a foot pursuit with Abdi, ultimately catching him and forcing him to the ground. What came next was caught on video – Abdi, unarmed and not resisting, was hit with police fists and batons.

Abdi never regained consciousness, his life ended in police custody, on the cold cement, in a pool of his own blood.

There was public outrage in Ottawa. But not from Watson, who remained silent for two whole days before e-mailing in a brief statement saying he was “saddened” by the events.

Shortly after Abdi’s death Bordeleau defended his officers by emphasizing that the police altercation occurred after Abdi’s allegedly “assaultive” behaviour and deflected questions by insisting “We need to let the SIU do their investigation and determine exactly what took place.”

Well, the SIU investigated and a full eight months after Abdi’s death Ottawa police constable Daniel Montsion was charged with manslaughter, aggravated assault and assault with a weapon.

After the SUI investigation Bordeleau again ducked questions about the actions of his officers and his force's policies and saying that the matter was now before the courts. Bordeleau did find some time to insist that the charged officer deserved to be treated fairly and said, “Mr. Abdi’s death has also been difficult for the membership of our police service.”

Ottawa’s mayor also refused to comment.

Shortly after the SIU laid charges it was revealed that during the beating death of Abdi police constable Montsion was wearing a pair of Oakley SI Assault Gloves. The assault gloves – available on Oakley’s military and government sales website – feature a raised carbon fibre knuckle guard. In other words, as an Oakley sales representative said, “Think about it as a pair of brass knuckles on a glove.”

These are the gloves that constable Montsion was wearing when he punched a motionless Abdi in the head. The Ottawa police have no policy on the use of assault gloves, nor was there mandatory training, or any type of accountability measures. Why? Because chief Bordeleau did not consider assault gloves weapons.

At this point I’m sure you can guess how Bordeleau responded when asked about the assault gloves – yep, Bordeleau said he was “prohibited” from answering any questions because the matter was before the courts. He also refused to answer any general questions about internal policies, which officers had access to the gloves, or when the force acquired them.

Bordeleau did break his silence to clear up one misconception — despite the manufacturer's comparison to brass knuckles, a neuroscientist’s opinion about the damage the gloves could inflict and common sense — Ottawa’s police chief did not even consider the cryptically named "assault gloves" a weapon. "Let's be clear,” said Bordeleau, “gloves, boots, clothes — they're not weapons.”

Watson took a similarly supine position with respect to the operation of his city’s police force saying: "I really can't give a comment. First of all, I'm not on the police services board, secondly, the matter is before the courts, and third, any kind of operational decision is really done by the [police] chief and not by the politicians.”

Let’s be clear here — Watson’s position is both ill-informed and irresponsible.

First, provincial legislation gives Watson a right to sit on the police services board — it is his choice to forgo that right.

Second, just because a matter is before the court does not precluded comment — especially comments on general police policy or procedures — especially when the safety of the civilian population is at stake. The bottom line is that the "no comment, it's before the courts" deflection is often overused, as Lorne Sossin, dean of Osgoode Hall Law School, argued in his 2013 paper, Comment on "No Comment": The Sub Judice Rule and the Accountability of Public Officials in the 21st Century.

Third, it should be the obligation of a mayor to question his police force and speak for the citizens he represents.

But Watson’s approach in the Abdi case should have been expected — after all Watson has often defaulted to police apologism. Take for example Ottawa police Sgt. Chris Hrnchiar’s obviously racist Facebook rant about indigenous Canadians — Watson described that as merely bordering on racism.

Watson has also refused to comment on numerous egregious Charter violations by his police force.

In 2016 the Ontario Court of Appeal found that Ottawa police gratuitously inflicted pain on a man they arrested and denied him right to counsel. In another decision, released weeks later, the Court of Appeal found the Ottawa police conducted a "dangerous and unnecessary masked takedown at gunpoint" of a 43-year-old house cleaner, denied her right to counsel, held her incommunicado in a jail cell for nearly five and a half hours after her arrest and then lied to a court about it.

Ottawa’s mayor remained silent.

This month an Ottawa judge found that an Ottawa police officer pulled a young black man over for no reason, illegally searched his car, beat the man while he was cuffed, oh and the judge also disbelieved the police officer's testimony —is there a pattern here?

Ottawa’s mayor again remained silent.

The Ottawa Police Service is failing to protect the safety and security of our communities as a trusted partner in community safety. If this does not merit comment from the mayor and action from the police chief what does?

We should be asking why our high-ranking public officials are not advocates for public safety and police accountability — we get the law enforcement we insist on. After all our public leaders do not have a right to remain silent when the stakes are so high.

A version of this post first appeared on The Lawyers' Daily on April 5 2015

Liberals pick only low-hanging justice fruit with Bill C-39

Photo by Valengilda/iStock / Getty Images

Photo by Valengilda/iStock / Getty Images

This month, the Liberal government took swift and decisive action against zombie laws found lurking in Canada’s Criminal Code. Except their actions were not swift, decisive or principled but instead a half-hearted grab at only the lowest hanging justice fruit. 

Let’s first take a step back and look at the problem. As I wrote almost exactly a year ago, there is hidden in plain sight, right at the beginning of the Criminal Code, one of our law’s most laughable presumptions: Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. In other words, we assume that every person in Canada knows not just the letter of the law but also the centuries’ worth of judicial interpretation that informs our criminal justice system.
The Criminal Code is a big book full of antiquated laws, unconstitutional provisions and unjust policies.  
Criminal law is a blunt tool that has been overused by successive generations of politicians as a lazy way to deal with complex social problems. The result has been generalized and systemic criminalization of poverty, mental illness and addiction. 
But at the same time, Canada’s criminal laws are also overly specific — apparently, it is not sufficient to criminalize theft but every possible variation of theft: theft of oysters, theft of telecommunication service, theft of motor vehicle, theft of cattle and theft of mail. 
The code also contains antiquated and absurd laws. It is illegal to fraudulently practise witchcraft or sorcery — legitimate witchcraft is perfectly fine. It is also a crime to sell, distribute or produce any comic book or work of art that depicts real or fictitious violence — an odious limit on free speech that has no place in modern society. 
The code is also cluttered with laws that have been found to be unconstitutional — in other words, some of the laws that are on the books are not really the law at all.
As the infamously televised Travis Vader debacle illustrates, the Criminal Code is such a mess that even some of our judges don’t know the law. Of course, in the Vader case, an unconstitutional section in the code led to a mistrial application, a stunning reversal of a first-degree murder conviction, delays, wasted resources, untold grief to the victim’s family and an appeal.
It appears that a disaster of this magnitude is what it takes to spur the federal government into action – after the Vader trial, the justice minister announced a plan to review zombie laws.
So, the justice minister proudly and loudly introduced Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions). The bill will repeal: abortion prohibitions, the Vader murder law, anal intercourse prohibitions, the offence of spreading false news, vagrancy, some impaired driving evidentiary shortcuts and some limits on credit for pre-sentencing custody. The Supreme Court of Canada has found all these provisions unconstitutional.
So, why is this low-hanging fruit? Well, the Supreme Court has already done all of the work and analysis. In some cases, this has been settled law for decades. There is no original progressive thought found in Bill C-39.
It is shameful that it took an almost miscarriage of justice for the government to propose this simple legislation. And make no mistake — at fewer than six pages — it is simple legislation.
There should be legitimate criticism that the government did not go far enough. Sure, the Supreme Court has not ruled on crime comics and witchcraft, but why leave those provisions untouched? And the mollusk lobby must be powerful because thefts from oyster beds are still a separate crime under Canadian law. 
But the government did not even repeal all the parts of the code that have been definitively ruled on by the Supreme Court. Minimum sentences for some drug and firearm offences were recently found to be unconstitutional, but they remain untouched. 
Why? The only explanation for leaving these clearly unconstitutional sections in the code while removing others is political cowardice. 
Apparently, the Liberals are OK with some zombies shambling through the Criminal Code.
There should be a political price for such uninspiring legislation. But there won’t be. The response to the partial zombie law repeal announcement missed the mark on so many levels.
The media ran stories such as: “Federal government to end ‘zombie laws,’ clean up Criminal Code” and “Federal government to axe 'zombie laws' from Canada's Criminal Code” — except there was no real cleanup and not all zombie laws were axed.
Some commentators — such as the normally insightful Chantal Hébert — suggested that the Liberals were reopening the abortion debate. This argument is as misplaced as suggesting that a routine appendectomy should be celebrated as a groundbreaking medical procedure. Yet, partisans and even Conservative Senator Linda Frum adopted the abortion red herring.
And Liberals? They were lined up before the cameras to celebrate their half-hearted and incoherent announcement.
But there should be no backslapping on this one. The fact is that after 18 months of almost complete inaction on the justice front, the government has done less than the bare minimum to update the Criminal Code.
Instead of self-congratulations, the justice minister should actually move forward with marijuana legalization, decriminalization of drug possession, bail reform, fixes to court delays, judicial appointments and minimum sentence rollbacks. 
After all, young black men are still disproportionately being charged with simple pot possession, our jails are overflowing with accused with untreated mental health issues, cases are being thrown out of court for delays and scores of Canadians are dying on the streets from opioid overdoses.
But addressing those issues would require more than the bare minimum of effort.
And the sad reality is — even after the announcement of Bill C-39 — unconstitutional and historical zombies still walk our legislation and the government seems content to sit on its hands feeding on low-hanging fruit — until the next legal disaster.