Filtering by Tag: Criminal Law

Bill C-489: The first wave of Victims' Rights Legislation

Today I appeared at Standing Committee on Justice and Human Rights to speak about Bill C-489

Bill C-489 (a private members bill introduced by Mark Warawa) seeks to amend section 161 of the Criminal Code to allow sentencing judges to impose a geographical boundaries between the victim of a sexual offence and the offender.  The bill also would make it mandatory for a judge to impose a non-communication order between victims and offenders.

Bill C-489 is the first in an expected wave of 'victims rights' legislation.  While in principle I support the intent of the bill and its goals there are some areas of the bill where further evaluation is warranted.  This is not somesort of back handed compliment - Mr. Warawa should be commended for his initiative and compassion for his constituents.

However, the fairness and effectiveness of Bill C-489's could be improved (and I hope it will be through amendments at committee).  Bill C-489 is overly specific and a may be slightly too inflexible.  The positive intent and goals behind this legislation can in fact be achieved (and achieved more effectively) through less specificity combined with a reliance on judicial discretion when crafting probation and prohibition conditions.

Section 161 - Order of Prohibition

Cause 1 of the bill seeks to add the option of a geographical restriction or boundary between the offender and the victim to a prohibition order.  

There clearly is nothing wrong with this in principle.  The condition is not mandatory and the Criminal Code allows a judge the discretion to add exceptions to the geographical restriction.

The logical issue is this: where did the geographic boundary of 2 kilometers come from?  What is the evidence that this is the appropriate distance? 

I readily agree that having the option of a condition of this type is appropriate.  But if we trust judges to exercise discretion about exceptions to the condition why not discretion on the boundary distance itself  There may be cases may call for a smaller geographical limit and certain there are cases that cry out for a greater distance.  

Judicial discretion forms part of the bed rock of our justice system.  A sentencing judge knows the facts of the case, the circumstances of the offender, and they must consider the input of the victim.  

These sentencing judges are the people that are in the best position to impose an appropriate geographical distance - whether that be 500 meters, 1 kilometer, 2 kilometers, or more.

Legislation that is overly specific and then applied generally inevitably leads to problems. A more flexible approach of general legislation which is then applied to specific cases utilizing principles of judicial discretion is preferable. 

General legislation focused through the lens of judicial discretion results in decisions that are fairer, easier to enforce, and that ultimately are more effective.

A blanked 2 kilometer boundary may be too large in small town settings due to the size of the town.  On the other hand a 2 kilometer radius in large cities can poses a problem too - the boundary may cover hundreds of thousands of people and exclude attendance at many locations.  This problem can be especially acute in cities where programs designed to assist and rehabilitate offenders are often clustered together (as is the case in Ottawa).

The Criminal Code provides that a judge will have the ability add exceptions to the conditions.  An overly broad condition with multiple and complex exceptions will result in more error prone sentencing, more uncertainty, increased enforcement difficulties, and potentially unwarranted interference with the offenders liberty.  

It would be preferable to utilize judicial discretion to cure these problems - quite simply judges should be able to impose the appropriate geographical restriction - one that is not decided in a vacuum but in the courtroom.

Probation Conditions

Clause 2(1) directs the imposition of a mandatory no contact provision between the offender, victim, witness, or other person identified in the order.

It is positive that the legislation provides for exceptions to allow contact with the victim when is consent is given.  

However, section 732.1 of the Criminal Code already allows for the imposition of this proposed condition.  This type of condition is routinely, if not always, imposed in the courts.  

For example, if the offence is domestic in nature (i.e. a spousal assault) there is always victim input sought and if there is a desire to have NO contact a 'no contact condition' is always imposed.

In offences such as robberies, break and enters, frauds, and even thefts conditions prohibiting contact are almost a certainty.  

Even if a victim desires contact with the offender a prohibition on contact is still imposed with an exception for contact - with the victims revocable consent.

The proposed amendments are simply not necessary.  

A more practical issue exists in the language of the exception clause -  it is a bit unclear.  

Does the consent need to be provided when the condition is imposed or can consent be provided at a later date?  It would seem that the latter interpretation is the case as this would allow the victims more control over the probation condition and as a result more control over their own well being.  For example, the victim could revoke consent at a later date or alternatively give consent at a later date.

If the condition indeed is intended as above (that the the consent need not be provided at the exact moment sentence is imposed) then in reality there will be no practical difference over what is currently occurring in the courts.  

This of course leads to the question: is this addition to the criminal code - which is already a weighty statute - truly necessary?


I hope that the Justice committee will carefully examine this proposed legislation.  It is my hope (it is however a faint hope) that needless duplication will be eliminated.  

I am more hopeful that judicial discretion will be better incorporated into the bill.  This would promote individualized fairness and restraint, while at the same time protecting victims.     

Issues concerning criminal justice policy can be highly charged.  This is even more the case when victims rights forms part of the issue.  The public is only well served when even the best-of-intentioned policies are carefully evaluated. 

The impacts of bad policy are too great.  Ideology must be left at the legislative door.


Canadian Debtors' Prisons, Victim Fine Surcharges, and Half Truths

The Conservative Government's tough on crime at all costs agenda took another step forward on October 24th with the coming into force of the Increasing Offenders' Accountability for Victims Act.  This act doubles victim fine surcharges and at the same time removes all judicial discretion to waive these fines.

Upon conviction an offender is liable to pay a victim fine surcharge.  Until October 24th the fine was fixed at $50 for a summery conviction offence and $100 for an indictable offence.  The judge was however given discretion to waive the fine its imposition would result in undue hardship.

These fines are now doubled.  There is no discretion for a judge to waive the fines - even where they would impose an undue hardship.  A good background post on this new legislation by Dyanoosh Youssefi can be found at the Huffington Post.

The Government justifies the new legislation as acting to increasing offender accountability, ultimately providing assistance and advancing the position of victims of crime. 

The problem is obvious.  For many people convicted of offences even $100 represents a significant amount of money.  The imposition of the surcharge - a debt which is now part of the sentence - can represent an undue hardship.  This is especially true when the offender is disadvantaged and already experiencing hardship.  A fine in these cases can actually impede rehabilitation, result in further incarceration, and may contribute to further offences.  This does not assist victims - it creates them.  

Recently while in court I witnessed a homeless man ordered to pay a $100 surcharge for a minor theft.  The monetary value of items the man stole was easily less than $100.  The man was motivated by addiction.  The theft was not planned.  The victim was a big box store.

The man I saw has no ability to pay a $100 surcharge but the surcharge has the ability to negatively effect the man for years to come.  Imposing a surcharge in a case like this does little to help victims.  In fact the draconian imposition of surcharges leave society less safe by further marginalizing those we should be assisting.

Importantly the victim fine surcharge forms part of the imposed sentence.  Non-payment of the fine can result in jail.

Don't fear said the Government.  There will be no Canadian debtors prison.  When the bill was introduced in Parliament Justice Minister Rob Nicholson (as he then was) made the following representations:

Those offenders who are truly not able to pay the victim surcharge without incurring hardship would have the option of participating in provincial and territorial fine option programs to discharge the amount owing. This is the second change proposed by Bill C-37.
Fine option programs will allow offenders to satisfy the victim surcharge by earning credits for work they perform in programs operated by the provinces or territories. This is in line with the philosophy of a victim surcharge, which seeks to make offenders accountable to victims of crime.

This provides cold comfort to destitute residence on Newfoundland, Ontario, and British Columbia.  These provinces do not have fine option programs

The most egregious aspect of Mr. Nicholson's representations is that he knew about the unavailability of provincial fine programs.  The Government's own Legislative Summary stated as much:

The provinces and territories that offer the fine option program under section 736 of the Code are Quebec, New Brunswick, Prince Edward Island, Nova Scotia, Alberta, Saskatchewan, Manitoba, Yukon, Northwest Territories and Nunavut. Ontario and Newfoundland and Labrador do not offer this type of program to offenders.
Program eligibility criteria also differ among the provinces and territories. For example, the 2004 Statistics Canada publication entitled Community Corrections in Canada states that:
It should also be noted that not every provincial fine option program will allow an offender to dispose of a victim surcharge by participating such a program. For example, in Nova Scotia and New Brunswick, the offender may participate in a fine option program only after having paid the court costs and surcharge portion of his or her fine. Prince Edward Island’s Victims of Crime Act (the current version of which has been in force since 30 May 2012) goes even further by stating in subsection 9(3) that a “surcharge shall not be disposed of or satisfied by participation in a fine option program or by way of imprisonment in default of payment.”

Not every province has a fine option program.  Many provinces that do have such a program do not offer it for surcharges.  Mr. Nicholson knew this but did not say as much.    

At least the announcement concerning the coming into force of the legislation by Justice Minister Peter McKay was more honest: 

The victim surcharge will be mandatory for all offenders. Those who cannot pay will be able to discharge the victim surcharge by participating in a fine option program or through alternative mechanisms, where they exist.

The man I saw sentenced last week will not be able to take part in a fine option program.  His outstanding fine has the real potential to interfere with his rehabilitation.  Most importantly his liberty is at stake.  There is a possibility that he will be jailed for simply not being able to pay the surcharge.  

This does little for victims.  It certainly does not make victims safer.  

Perhaps in the weeks an months to come the man I saw in court will find stability; perhaps he will find a job; perhaps he will manage his addition; perhaps he will find stable housing; and perhaps all of that will be taken away when he is incarcerated for not being able to pay a surcharge. 

Sadly this legislation provides further evidence of the pervasiveness of an ideological approach to criminal justice policy.  The Conservative Party's apparent destain for judicial discretion, compassion and subtly is short sighted and misguided (I should note that it continue to astound me that the NDP supported the legislation).  

Contrary to the Government's claims the new victim surcharge provisions should not provide any comfort to victims.  Ironically, it may well in fact serve to perpetuate victimization.  




Mayor Rob Ford: Search Warrants 101

With the explosion of the Rob Ford story and the recent release of related court documents terms like ‘information to obtain’ and ‘reasonable and probable grounds’ have leaked from courtroom submissions into the popular discourse.  

Search warrant and the process to obtain and challenge them are a complex area of the law.  This complexity arises from the extraordinary power search warrants bestow on the police.  

The starting point in any search warrant discussion is the Criminal Code and the Controlled Drugs and Substances Act (CDSA).  Both of these statutes contain provisions that can authorize the issuance of search warrants.  These provisions are designed to ensure effective limits on the powers of police to invade the privacy of citizens and to precludes the police from embarking on fishing expeditions in the hope of uncovering evidence of crime.

There are some slight differences between the authorization powers in the Criminal Code and the CDSA, however their basic principles are the same: before issuing a search warrant a justice has to be satisfied on oath that there are reasonable grounds to believe the search will afford evidence with respect to the commission of an offence.

A judge, If satisfied that there are reasonable and probable grounds can issue a warrant authorizing the police to search the building or place for the named thing and to seize it.

The sworn document that outlines the police’s reasonable and probable grounds is commonly called an Information to Obtain a Search Warrant or ITO.  The court documents released in relation to Toronto Mayor Rob Ford are a heavily redacted copy of an information to obtain a search warrant.

The above is of course a simplification of the rules surrounding search warrant and their authorization.  The process of obtaining or challenging a search warrant and the ITO that justified its authorization is, to say the least, complex.  

Reasonable and Probable Grounds to Issue

For any search warrant to be issued the police must demonstrate the existence of  “reasonable and probable grounds”.  The reasonable and probable grounds standard lies between suspicion and proof beyond a reasonable doubt.

Affidavits outlining reasonable and probable grounds, such as the ITO in the Ford case, must meet the criteria set by the Supreme Court in R. v. Araujo.  They must set out facts – not suspicion or conjecture – fully and frankly so that the authorizing justice can make an assessment of whether they rise to the standard required for an authorization to search.  

Affidavits must not trick; they must not under-state weaknesses in the evidence or over-state strengths, and the must not stray into speculation.  In sum, they must permit a justice to act judicially.

The police are required to provide the judge full and frank disclosure of all the facts.  It must always be remembered that supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for finding reasonable and probable grounds.  

Challenging a Search Warrant

A search warrant can be challenged on the basis that should not have been issued because there were no reasonable and probable grounds or that the judge who issued the search warrant was mislead with respect to the grounds.

As one may expect ITO’s can be lengthy documents.  Reasonable and probable grounds can be shown a number of ways including: informant information, police surveillance, or other evidence.  Given that this information is sworn to by the police and given that there is judicial oversight the standard of review when challenging a search warrant is quite high.

The role of a reviewing court is limited and the court is not to substitute its views for that of the issuing justice.  The Supreme Court in R. v. Garofoli held:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

Despite the high standard of review the reviewing court is nonetheless performing a real judicial function aimed at ensuring that privacy rights are respected. It must be remembered that the obtaining of a search warrant should not be the product of a “rubber stamp” procedure. The Supreme Court of Canada in R. v. Araujo stated:

..the authorizing justice must look with attention at the affidavit material, with an awareness that constitutional rights are at stake and carefully consider whether the police have met the standard. All this must be performed within a procedural framework where certain actions are authorized on an ex parte basis. Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests. The judge should not view himself or herself as a mere rubber stamp.

The Ford ITO is heavily redacted making any meaningful evaluation difficult.  It is apparent the investigation was extensive.  The Toronto Police utilized informants, production orders, interviews, and some the most extensive surveillance I have ever seen to justify reasonable and probable grounds.  The investigation was nothing if it was not thorough.  

Given the extent of the investigation and material presented to the issuing justice any defence lawyer challenging the  Ford search warrant has a lot of hard work in their future.  

It kind of makes me jealous.


Thoughts on the Speech From The Throne

Yesterday the Governor General delivered the Conservative Government's Speech from the throne.  The full text of the speech can be found here

The speech dealt with many matters that are of fundamental importance to Canadians - like the ability to purchase unbundled TV channels.  Directly following this heady TV policy announcement the Conservative Government laid out their criminal law priorities.  Yesterday I wrote that I expected to be disappointed with the announced criminal justice policies and I was. 

With respect to criminal law policy here is an excerpt of the Conservative announcements: 

Supporting Victims and Punishing Criminals

Our Government believes that the justice system exists to protect law-abiding citizens and our communities. For too long, the voices of victims have been silenced, while the system coddled criminals. Our Government has worked to re-establish Canada as a country where those who break the law are punished for their actions; where penalties match the severity of crimes committed; where the rights of victims come before the rights of criminals.

Our Government will introduce a Victims Bill of Rights to restore victims to their rightful place at the heart of our justice system.

Canadians are rightfully alarmed when violent offenders found not criminally responsible for their actions are released into our communities. Our Government will re-introduce legislation to ensure that public safety comes first.
But we must do even more to protect our children. Child predators should never be let off with only a single sentence for multiple crimes against children. Canadians demand that those who prey on our children pay the full price for every devastated life. Our Government will end sentencing discounts for child sex offenders.
It is also unacceptable that dangerous and violent offenders are released into our communities before serving their full sentences. Our Government will end the practice of automatic early release for serious repeat offenders.
But for the worst of all criminals, even this is not enough. Canadians do not understand why the most dangerous criminals would ever be released from prison. For them, our Government will change the law so that a life sentence means a sentence for life.
Canadians also know that prostitution victimizes women and threatens the safety of our communities. Our Government will vigorously defend the constitutionality of Canada’s prostitution laws.

As expected there is not much evidence based policy to be found here.  More troubling is the fact that the Conservatives continue to fundamentally miss-frame any debate about criminal law policy.

The Conservatives contend that "For too long, the voices of victims have been silenced, while the system coddled criminals." 

This is simply untrue.  There are many sections in the Criminal Code that apply to victims (or alleged victims).  Complainants can, in the appropriate case, testify via video link or behind a screen so as not to face the accused.  Complainants can seek the assistance of support persons while providing testimony.  In some cases complainants need not testify and their prior statements can be read into evidence.  In all cases victims have access to a robust victims service office.

Additionally, after a conviction and when a court determines the appropriate sentence, victims have the right to provide a victim impact statement - they are not silenced as the Conservatives claim.  Courts must consider victim input.  Section 722 of the Criminal Code directs:

For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. 

Quite simply, victims are not silenced and to suggest otherwise is misleading. 

More importantly criminals are not coddled - again the Conservative are lacking in intellectual honesty.  The 'criminals' that the Conservatives talk about are actually 'accused persons' - who are presumed innocent.  People accused of crimes have constitutional, statutory, and common law rights; for example: the presumption of innocence, rights against unreasonable search and seizure, and rights against self incrimination.  These rights form the bedrock of our justice system.  Giving life to fundamental rights such as these is not coddling criminals and to suggest any different is disingenuous. 

The Conservatives also announced that it is "unacceptable that dangerous and violent offenders are released into our communities before serving their full sentences."

Indeed the Conservatives go further to suggest that "Canadians do not understand why the most dangerous criminals would ever be released from prison. For them, our Government will change the law so that a life sentence means a sentence for life."

I don't hold out much hope that the government will listed to the evidence about the  benefits of our parole system.

For example, studies have found that:

  • Eliminating early parole produced no consistent effects on crime rates;
  • Parole is advantageous given the increasing human and financial costs associated with prison, investing in effective reentry programs may well be one of the best investments society can make;
  • Supervising offenders in the community effectively can reduce criminality among those on parole or otherwise serving their sentences in the community;
  • Although violations of parole do occur, the number of offenders who meet the terms and conditions of their release provides impressive evidence of the effectiveness of the parole system in Canada.;
  • 50 per cent of offenders who were released directly from prison 12 years ago, without the benefit of gradual and controlled supervision, were later re-admitted for having committed new offenses. By contrast, only 10 per cent of those who were released on parole and completed their sentences under parole supervision, were subsequently re-admitted to federal penitentiary with new offenses.

Obviously there can be a debate about the evidence for or against any policy initiative.  However, in addressing release and parole the Conservatives ignore their own literature and give no confidence that there will be a legitimate debate or examination of the evidence. 

As a starting point I would commend the Conservatives start by reading the easy to understand 'Myth vs. Reality' fact sheet produced by the Parole Board of Canada.

Perhaps Canadians don't have a full understanding of the fundamental principles of our criminal justice system.  Education and examination of the evidence over blind ideology should be the answer. 

The Conservative's reckless disregard for evidence based policies does not make us safer. Maybe the Conservatives know this.  Perhaps appeasing their ideological base and not enhancing public safety is the Conservatives ultimate goal.