Filtering by Tag: Legislation

Bill C-13: Voluntary Disclosure - Rob Nicholson's Misstatements

Rob Nicholson.jpg

Earlier this week Justice Minister Peter MacKay introduced Bill C-13, the Conservative's much touted cyber bullying legislation.  It’s a massive bill which would amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.

The Conservatives have offered up C-13 as a necessary tool to address the serious problem of online harassment. And there’s a justifiable and strong will among Canadians to modernize the Code to tackle the serious problem of Internet harassment and abuse.

However, only a small part of C-13 actually deals with the problem of cyber bullying.  As I wrote earlier this week C-13 is a wolf in sheep’s clothing.  The majority of C-13 is actually devoted to expanding police powers relating to the search and seizure of personal Internet data.

As I wrote in iPolitics today, new laws are needed to stop cyber-bullying. Unfortunately, most of C-13 has little to do with protecting victims. Instead, this bill would recklessly expand the surveillance powers of the state. It sacrifices personal privacy. It limits or eliminates judicial oversight. It is inconsistent with recent Supreme Court jurisprudence. It's a dangerous bill.

The Conservative party’s arguments in support of C-13  are equally dangerous - they misstate and misrepresent the legislation and its potential impact on the privacy interests.

Voluntary Disclosure

One of the troubling aspects of C-13 is the provisions that would expand the ability of police to obtain Internet data in the absence of any judicial oversight.

During the first debate on C-13  Minister of Defence Rob Nicholson defended the voluntary disclosure provisions, saying:

Mr. Speaker, it is certainly politics as usual for the Liberal Party. I will give the member this: certainly his comments are completely consistent with the Liberal approach over the last seven and a half years, which is to look for anything, any excuse, anything the Liberals can hang their hat on to oppose government legislation that would either crack down on crime or would update the Criminal Code, and in this case, go against cyberbullying. They are always looking for something, and the ironic part about it is the part that this individual is criticizing. He has got it way off base.

In terms of the bill, the old Bill C-30 that he referred to, the provisions that he and others criticized the most are not in the bill. The provisions here need judicial authorization.

I bring the hon. member's attention to one section that was actually passed by a Liberal government. He had a problem with the voluntary production of preservation orders. I would refer him to section 487.014, which says:

For greater certainty, no production order is necessary for a peace officer or a public officer enforcing or administering this or any other ask a person to voluntarily provide to the officer...

We are only adding it to preservation orders. What is this individual's problem? It is already in the Criminal Code.

The problem with Mr. Nicholson’s statements is that they are simply untrue.  

Obfuscation on the part of the Conservatives about C-13 should not be surprising.  After all not only is C-13 itself an expert lesson in trickery and deception - its a trojan horse.

Escaping the notice of Mr Nicholson, the voluntary disclosure provisions proposed in C-13 remove the necessity for a police officer to actually be enforcing the Criminal Code before seeking disclosure of personal Internet data.  Further, the bill provides blanket civil and criminal immunity for any telecommunications company who feeds information to the police.

487.0195 (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.

The Criminal Code currently limits the ability of police to seek voluntary disclosure of data by a telecommunication company to circumstances where they are engaged in legitimate investigations (‘enforcing or administering this or any other Act of Parliament’).  

This very reasonable limit on police power serves to prevent fishing expeditions and the mass collection of data.  C-13 expands the permitted scope of voluntary disclosure by removing the requirement that police actually be engaged in an investigation.  

In essence, the police will now be able to ask companies to turn over data on anyone, anywhere, at any time, for any reason (or no reason).

The limitation of any liability for complicit telecommunications companies makes matters even worse.  Simply put, the C-13 leaves no legal incentive for companies to be cautious in the dissemination of data — and no recourse for individuals whose privacy is compromised.

This is all especially troubling given the recent evidence that the Conservative government was complicit in spying activities on Canadian soil.

Mr. Nicholson misleading defence of C-13 demonstrates that he is either grossly uninformed about his own party’s legislation or he that he takes his audience for fools.  

Bill C-13 does not “only adding it to preservation orders” to the voluntary disclosure regime.  It does much, much more -  it represents a dangerous erosion of personal privacy.  

Mr. Nicholson's statements only serve to better expose C-13 for what it is - a trojan horse for expanded police power.


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.