Filtering by Tag: Law

Louise Arbour and the Defence Counsel Conference

The Defence Counsel Association of Ottawa (DCAO) held our annual conference this weekend in Montebello, QC.  As usual the conference was well attended and offered a comprehensive program.   

The DCAO conference has a tradition of excellent keynote speakers.  Last year Glenn Greenwald gave a great speech; then he exploded the NSA story.  This year we were honoured to have The Honourable Louise Arbour deliver the keynote address.     

Louise delivered a truly inspiring speech and I was very honoured to be able to introduce her to the defence bar.  Below is the text of my introductory remarks:    

It is a great honour to introduce to you our key note speaker.
The Honourable Louise Arbour really doesn’t need any introductions – her reputation precedes her. 
We are all familiar with her body of work that includes time as a trial judge, a judge of the Ontario Court of Appeal and a Judge on the Supreme Court of Canada. 
Her international work is simply incomprehensible: Chief Prosecutor for The International Criminal Tribunals for the former Yugoslavia and for Rwanda, United Nations High Commissioner for Human Rights, and most currently President and CEO of the International Crisis Group.
Louise holds over 40 honourary degrees, but as many of you may know - perhaps most importantly - she also holds the prestigious title of my Mother-in-Law.  I hope with that in mind any informality in my introduction will be forgiven.
It is simply mind blowing that next year will mark the 10 year anniversary of Louise’s departure from the Supreme Court.
Imagine a SCC composed of Justice McLachlin, Iacobucci, Major, Binnie, Arbour, LeBel, Fish, Deschamps, and Basterache.
Seems may seem like a wild fantasy – but it was a reality in 2004 – Louise’s last year at the Supreme Court. 
By next year Mr. Harper will have appointed 7 out of the 9 Supreme Court justices. Reflect on how the Supreme Court will have changed over the last 10 years. 
It may be painful, but I would also ask you to think about how much criminal law and criminal law policy has changed over the last ten years.
It is safe to say that Louise’s departure 10 years ago was deep loss to the development of Canadian criminal law, but it would be unfair to fault her for the negative changes occurred in her absence.
Although I do note that when Louise wrote a Supreme Court judgment - and she wrote 69 of them - she carried the majority 80% of the time.
Taking this into account it may actually be fair to say that her departure was not an insignificant cause of our current situation. 
Thus employing her own logic from the case of R. v. Nette this in fact means that Louise’s departure was indeed a significant contributing cause of our current situation.
I have the privilege of being able to spend a great deal of time with Louise.  I always learn something new when we talk and recently Louise introduced me to my new favorite quotation:
“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.”
This is a quote from 1848 by the French ecclesiastic, preacher, journalist and political activist Henri-Dominique Lacordaire
To plagiarize Louise's recent address to the UN General Assembly - he was right. The purpose of law in a free and democratic society is to liberate, not to restrain. It is to 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.
Upon reflection it is this principle that underpinned so many of Louise’s judgments. 
It is this principle that Louise has applied to great effect on the international stage. 
Clearly Canada’s loss was the worlds gain. 
But tonight it is our gain that Louise is able to address us.
Please welcome our friend The Honourable Louise Arbour.  

Evidence Based Policy: Conservative Party Announces New Sex Offender Legislation

The Conservative Party of Canada has recently announced new legislation targeting those who commit sexual based offences.  The legislation would require those convicted of sexual offences to notify police in advance of international travel plans, and authorize broad information sharing between Canadian and international agencies.  

Most problematically Mr. Harper also promised a national, online database accessible to the public that would list information about offenders. 

A publicly accessible online database of offenders is a step that should be taken very hesitantly and with very careful examination given the potential disastrous implications (examples of which can be seen here and here).

Laws should be based on evidence with an honest accounting of all the potential costs and benefits.  This honesty is missing from Conservative Party policy.  

Given the Conservative Party's track record with criminal justice legislation I do not hold out much hope that any new laws will represent anything more than ideological pandering. 

Quite simply the Conservative Party does not draft laws based on evidence.  They legislate based on public reaction and ideology.  The Conservative Party legislates under the guise of public safety but their measures do little to make us safer.

From the Conservative perspective you either stand with the government or you stand with the sex offenders.  This mind set is not only intellectually dishonest but it is unsafe.

Will Mr. Harper listen to the evidence as it relates to sexual offenses?

A 2008 study found that New York’s Sex Offender Registration and Notification Law had no impact on reducing sexual re-offending by rapists, child molesters, or other sex offenders.  The study concluded that:

One of the main reasons that sex offence registries and community notification schemes do not have any impact is that the recidivism rate for sex offenders is not remarkably high. Most sex offences, it appears, are committed by those who have not previously been convicted of a sex offence. “Because registration and community notification laws were based on false assumptions regarding sex offenders and sexual offences, attention and resources are diverted from those most common types of sex offences – those committed by first-time sex offenders and those who have a pre-established relationship with the victim – to ones perpetrated by the stereotypical sex offender

A 2003 study dealing with sex offenders registration and community notification came to the conclusion:

Clearly, registries and notification systems are not without their own problems and, as such, demand careful scrutiny before being implemented. This warning gains even more salience when one recognizes that their proclaimed benefits have yet to receive empirical support. 

A 2007 study found that notification systems are in fact more likely to negatively effect overall safety and do not reduce recidivism rates:

Clearly there are negative consequences of efforts to publicize the identity of those who have been released from prison after serving time for sex offences. Given the absence of convincing data on the efficacy of these procedures in reducing recidivism, it would appear that these broad notification policies “are more likely to undermine the stability of sex offenders than to provide the sweeping protection they intend to achieve” 

Many studies have shown that communities are not made safer by the type of legislation embraced by the conservative, see:

  • During, Caleb (2006). Never Going Home: Does it Make Us Safer? Does it Make Sense? Sex Offenders, Residency Restrictions, and Reforming Risk Management Law. Journal of Criminal Law & Criminology, 97(1), 317-363.

  • Harris, Andrew J. R.; Hanson, R. Karl (2004). Sex Offender Recidivism: A simple Question. Ottawa: Public Safety and Emergency Preparedness Canada.

  • Levenson, Jill S.; Cotter, Leo P. (2005). The Impact of Sex Offender Residence Restrictions: 1,000 Feet from Danger or One Step from Absurd?. International Journal of Offender Therapy Comparative Criminology, 49(2), 168-178.

  • Petrosino, Anthony J.; Petrosino, Carolyn (1999). The Public Safety Potential of Megan’s Law in Massachusetts: An Assessment from a Sample of Criminal Sexual Psychopaths. Crime and Delinquency, 45 (1), 140-158.

Sexual offences are reprehensible and must be dealt with seriously.  At the same time criminal laws dealing with sexual based offences should consider the available evidence. 

It may be that Canada requires new legislation to deal with emerging criminal law issues, but it is only when evidence is considered that communities can be made safer.  Sadly it seems that this is not  Mr. Harper goal.  Quite tellingly Mr. Harper said: 

“We do not understand why child predators do the heinous things they do and, in all frankness, we don’t particularly care to.” 

If Mr. Harper truly is interested in making communities safer he should care.  We should care.  Legislation should not be reactionary.  It should not be ideological.  As citizens we deserve logical and evidence based policies.

Reactionary legislation may make us feel safer, but this is a cold comfort if the protections offered are more illusory than real.