Among Premier's influencers and the AG's true role, Mulroney is absent

Last week, the Ontario Court of Appeal found that Doug Ford’s legislative attempt at gerrymandering in Toronto’s election was disruptive and reduced the effectiveness of the candidates’ election messages.

The court also strongly inferred that Ford’s bill was unfair. But unfairness does not make a law unconstitutional. And although the Court of Appeal did not definitively rule Justice Belobaba got it wrong when he found that Bill 5 violated the Charter,it did find that there was a strong likelihood that he was in error.

In the end, Ontario Attorney General Caroline Mulroney may have prevailed in the Court of Appeal, but she certainly has nothing to celebrate. The whole debacle has confirmed two things: Mulroney is a legal lightweight and she is a non-player at the cabinet table.

But first, let’s take a step back and clarify the historical record.

Belobaba’s decision finding Bill 5 unconstitutional was released just after breakfast on Sept. 10. Within a matter of minutes, Ford tweeted: “Re: the judge’s ruling this morning, I’ll have more to say about this at noon. Stay tuned . . . #onpoli.“

This kneejerk reaction left no time for reflection, no time for analysis and certainly no time for Ford to discuss the complex decision with Mulroney.

And at that noon press conference, where Ford announced his hasty decision to take the unprecedented legal step to invoke the Charter’s notwithstanding clause to exempt Bill 5 from constitutional compliance, there was no sign of Ontario’s attorney general.

Mulroney was not in the room when Ford attacked the legitimacy of the “appointed” judge’s decision and began his assault on the role of an independent judiciary. Mulroney was nowhere to be seen when Ford said he would not hesitate to use the notwithstanding clause again.

In fact, Mulroney ghosted the whole province until much later in the day when she tweeted: “s92 of the Constitution makes it clear that the Province has exclusive jurisdiction over municipalities. It’s why we’re appealing the ruling and will be introducing legislation to invoke s33 to deliver on our commitment of smaller, more effective government. #onpoli #forthepeople.”

It is shocking that the chief legal adviser to Her Majesty the Queen in Right of Ontario and, by extension, the Government of Ontario seems to have played no role in Ford’s decision to invoke the notwithstanding clause. It is Mulroney’s job, after all, to provide legal advice to and conduct litigation on behalf of the government. But it appears that she did none of these things. She was either asleep at the wheel or even worse pushed out of the car by Ford.

It is shameful that Mulroney did not firmly and brightly stand up for the judicial system when Ford began throwing shade at judges.

But even more disappointing is the lack of legal depth Mulroney displayed when she finally did speak up.

In her initial tweet, Mulroney seems to conflate the jurisdictional issues with the decision to invoke the notwithstanding clause. No one has ever said that the province did not have the jurisdiction to pass laws that deal with municipal elections. But perhaps Mulroney’s conflation of the issues should not come as a surprise. After all, Mulroney has not really even practiced law that much.

She only renewed her lapsed licences in 2017 — immediately prior to her unsuccessful leadership bid. And she has only ever been licensed to practice law south of the border. She has never been licensed in what should be considered a foreign jurisdiction given her U.S. training — that jurisdiction being Ontario.

Maybe this lack of experience with the Canadian legal system explains her bizarre defense of Ford’s use of the notwithstanding clause in the Ontario legislature, where Mulroney said, “We are using the Charter of Rights and Freedoms to uphold the Constitution.”

Yes, Ford was indeed using the Charter’s notwithstanding clause but not to uphold the Constitution. The reality, apparent even to a legal neophyte, is that Ford was using a provision of the Charter to pass a law that had been found to violate the Constitution.

The fact that the Court of Appeal later expressed skepticism regarding the soundness of Belobaba’s reasoning does not untangle the logic pretzel Mulroney found herself in when defending Ford’s drastic and ultimately unnecessary decision to invoke the notwithstanding clause. 

The hypocrisy of Mulroney’s position is even more galling.

She remained silent when Ford attacked the legitimacy of the judicial system. She defended Ford’s use of the notwithstanding clause because municipal elections are a subject of provincial jurisdiction. Mulroney says that, despite the fact the issue was never raised by Ford during the election, the government now has a mandate to forge ahead with Bill 5.

And yet Mulroney has filed a court challenge to the federal government’s carbon tax. Recall that the federal government actually campaigned on the carbon issue. And the federal government has the jurisdiction to implement the carbon tax. And yet Mulroney is asking “appointed judges” to interfere with the democratic will of the people — but only when it suits her.

 Hypocritical inconsistency is the hobgoblin of small and politically partisan minds. And Ontario deserves better.

Mulroney is not Doug Ford’s attorney general. She is the attorney general for all of Ontario. It is time she started acting like it.

Feds need constitutional remedy on sexual assault intoxication defence

The news that an Ontario Superior Court judge ruled the prohibition on extreme intoxication as defence to sexual assault was unconstitutional broke just before the Labour Day long weekend.

And then social media exploded.

Tweets and Facebook posts linking Ontario’s absurd buck-a-beer initiative, the removal of consent from school curricula and the defence of extreme intoxication spread like a viral forest fire. "Shame on us, Ontario," was the public sentiment.

But Justice Nancy Spies' decision in the McCaw case came as no real surprise to criminal lawyers. After all, s. 33.1 of the Criminal Code,  which prohibited the drunkenness defence, had been struck down as unconstitutional nine times already. Seriously, every time the issues had been argued — in British Columbia, Quebec, Nunavut, the Northwest Territories and five times in Ontario — the limitation was found to violate the Charter.

In fact, Spies did not even really make a decision on the constitutionality of s. 33.1. She said she would have found it unconstitutional but the decision was already made for her. She said that she was bound by precedent set in the Dunn case, which first found the limitation to be unconstitutional in 1999.

The question is not is the defence of extreme intoxication in sexual assault cases back. It has been back for a while now.

Historically, intoxication was never a defence to any crime. However, as the common law evolved to recognize that punishment without a guilty mind was fundamentally unjust, this rule was relaxed. It came to be the case, and it was confirmed by the Supreme Court in the 1977 case of Leary that extreme intoxication could provide a defence for specific intent offences but not offences, such as sexual assault, that only required a generalized intent.

Following the coming into force of the Canadian Charter of Rights and Freedoms, the Supreme Court was asked to re-evaluate the issue. The Charter guarantees a right to a fair trial and the right to be presumed innocent. But because of the rule in Leary, in situations where the level of intoxication reached by an accused was sufficient to raise a reasonable doubt as to the capacity to form even the minimal mental element required for a general intent offence, an acquittal was impossible. 

So, in 1994, the Supreme Court found that extreme intoxication to the point of automatism could be a defence to general intent offences. To hold otherwise would violate the Constitution. 

But this was not a licence to get drunk and commit sexual assault. The Supreme Court also found that this type of defence would be rare. This conclusion was backed up by empirical evidence from Australia and New Zealand, both of which had permitted a similar defence to sexual assault charges for almost 20 years, and their experience did not result in the opening of any floodgates.

The majority of the Supreme Court, including Justice Claire L'Heureux‑Dubé (who may be best known for defending the rights of women and being tough on crime), importantly went on to limit any intoxication defence: that the accused would bare the onus of proving the rare defence and would need to back up the defence with expert evidence.

The federal government’s reaction was swift, and nine months after the Supreme Court’s landmark decision, legislation introduced by then-Justice Minister Allan Rock was passed to eliminate a defence of extreme intoxication for all assault-based offences.

And then that new law was found unconstitutional twice in 1998, thrice in 1999, once in 2000 and 2005, twice more in 2010, again in 2012 and yet again last month.

These cases never made it to any court of appeal or the Supreme Court because even when the accused was permitted to advance the intoxication defence they were convicted — every time.

The current federal government pledged to modernize the Criminal Code and to ensure that our laws meet constitutional muster. But they seem to have purposely avoided this problematic section of the Code. The result is a revolving door of litigation, a patchwork of laws and public confusion.

Perhaps it is understandable — from a political perspective — that the government is hesitant to touch s. 33.1 of the Criminal Code with even the longest of poles. But it must. The current state of affairs is not only constitutionally dubious but also dangerous.

Thisbrings me back to all of those social media posts. Being drunk is not a defence to sexual assault. Being intoxicated is not an excuse to abuse women. But a quick and uninformed read of all of those tweets and Facebook posts may lead some to that conclusion. And this risks public safety.

Is the defence of extreme intoxication in sexual assault cases back? No. Not only did it never really go away but its chances of success also remain as rare as ever. 

As the Supreme Court said in 1994, it is always open to Parliament to fashion a remedy that would make it a crime to commit a prohibited act while drunk. It is time the government did just that, but this time, it should do it in a way that does not violate the Constitution. 

Getting to the real root of gun violence

Politicians, police officers and Crown prosecutors have not been serious about fighting guns and gangs — at least according to Ontario Premier Doug Ford.

 "It's time to get serious about fighting guns and gangs," said Ford earlier this month, as if this was an issue of trifling importance prior to the election of the Progressive Conservatives. 

How is Ford getting serious about guns? Part of his answer is to spend $7.6 million to create a “legal SWAT team” in each Toronto courthouse. Apparently, if there is a problem with guns, it only exists in Toronto.

Each of Ford’s SWAT teams will be led by a Crown attorney and will be mandated to focus exclusively on ensuring violent gun criminals are denied bail and remain behind bars.

If anyone needs to get serious about gun violence it is Doug Ford and Attorney General Caroline Mulroney because this new plan has no basis in reality and it won’t move the needle a centimetre toward making our communities safer.

Ford’s announcement throws some backhanded shade at Ontario’s prosecutors. He implied that prosecutors are part of “a system that lets far too many criminals convicted of gun crimes out on bail and back on the streets the very next day.” 

Does Ford think prosecutors are pushovers when it comes to gun crimes? Does he hold Crown attorneys responsible for this year’s spike in gun crimes? I suppose it falls to a criminal defence lawyer to stand up for Ontario’s Crown attorneys because the fact is that they are skilled advocates who forcefully prosecute gun crimes and are hyper-aware of public safety. I can’t imagine what more prosecutors could do to get serious about guns.

There are already specialized Crowns who deal with gang and gun charges, and all prosecutors are already directed to take gun bails very seriously. But don’t take it from me — it is in black and white in Ontario’s Crown Prosecution Manual, which says: “In all cases involving firearms, the Prosecutor must seek a detention order, absent exceptional circumstances, to ensure the safety and security of the public. If exceptional circumstances exist, the Prosecutor must obtain prior approval of the Crown Attorney or designate before recommending or consenting to any form of judicial interim release.” 

So, prosecutors almost always contest the release of anyone charged with a gun crime. Ontario’s prosecutors are hyper-vigilant when it comes to guns and, take it from me, they are very skilled in the courtroom. The fact is that it is difficult to secure a release for any serious firearms offence and when, over the Crown’s objection, bail is granted, the conditions of release are always restrictive.

And then there is a problem with the logical connection between bail for gun charges and reducing gun crimes. It is basically a settled proposition, if you care to actually look at the evidence, that severity of punishment doesn’t deter crime. So, Ford’s posturing about cracking down on bail won’t stop gun crime.

Is it Ford’s contention that the recent spate of shootings has been committed by people who were already on bail for a prior gun allegation? This would be cause for concern, but there is no evidence to suggest that this is the case. And spending millions of dollars in the absence of any evidence is wasteful and counterproductive. Ford’s announcement was not about actually achieving results or making our streets safer — it is all about creating the mirage of action.

Spending money on programs designed for political damage control is not only ineffective,it comes with opportunity costs. As Ford has constantly reminded us, there is not an unlimited amount of money for the province to spend. Just think what Toronto could do with almost $8 million to actually increase community safety: addiction treatment, anti-poverty measures, affordable housing, mental health supports, job training and youth gang exit programs. Funding these types of programs may not be the thing of blustering-tough-guy press conferences, but it would actually produce results.

But, instead of investing in preventing crime and keeping our streets safe, Ford plans to cut many of these programs — programs that actually do reduce crime. 

The reality is that police, prosecutors and politicians have been serious about reducing violent crime.

Sadly, it is Ford and Mulroney who are not serious about keeping our streets safe, and one only needs to scratch the surface to come to that conclusion. They seem to be more interested in optics than in reality and results. Their short-sighted approach to the very serious issue of gun violence will end up costing much more than $7.6 million.   

After Danforth shooting, no solutions just political theatre

Faisal Hussain will forever be known as the Danforth shooter. Because he was. It is a fact that Hussain’s shooting rampage in Toronto’s gentrified Greektown neighbourhood injured 12 people and killed two more – a 10-year-old girl and an 18-year-old woman. But even when there is no doubt about so many of the facts there are still questions to be answered. 

What motivated Hussain to gun down innocent people? How could this have happened? Could it have been prevented? But there will be no criminal court process to help shed light on these questions ­– Hussain shot himself in the head that night following an exchange of gunfire with the police.

So, it will fall to our elected officials to act reasonable and rationally. Unfortunately, time and time again, political rationality has proven to be an impossibility following high profile incidents. And it seems that the fallout from this tragedy will be no different.

In response to the shooting the federal government made it known that they were taking a serious look at banning all handguns. Although banning handguns may be a reasonable objective, the Liberal’s public musings are likely driven by politics, not reason. In reality, there is a 0 per cent chance that there will be any meaningful federal legislation banning handguns passed before the next election. Gun policy is, however, a delicious wedge issue for an upcoming election – the calculation here is political not factual. Don’t expect any federal quick fixes.

And so, Ontario is left looking toward Doug Ford and the provincial Conservative government for leadership.

There is mounting evidence that Hussain was driven by mental health issues. His family issued a statement calling their son’s actions “horrific” and expressing their “deepest condolences” to the victims. Hussain’s family also said that he had “severe mental health challenges.” It was also reported that Hussain was known to police for having a history of mental health concerns and had previously been apprehended under the Mental Health Act.

Perhaps if there were more robust mental health supports tragedy could have been averted. But the Progressive Conservative response in the aftermath of the shooting the was to cut $335 million a year in planned mental health funding.

If mental health was a factor in the shooting, and it seems that it was, cutting mental health supports is worse than counterproductive – it's potentially deadly. 

And then Doug Ford made things worse.

Ford told City News that part of the remaining mental health funding would be diverted to the “police side of mental health.” Ford seemed to go on to suggest that the diverted funds would be used to assist police officers with their mental health. This clearly misses the mark and does little to keep the streets safe. It certainly would not have prevented the Danforth tragedy.

Maybe Ford was just unclear. Maybe he meant that the diverted money would be used to enhance police training on how to deal with people in mental health crisis. This would be less bad. It is an unfortunate reality that front-line officers are often de-facto mental health workers. To be clear, a majority of people with mental issues do not commit criminal acts, but as detailed by the Canadian Mental Health Association they do often come into contact more often with police. And it seems that most people killed by the Toronto Police have some kind of mental health or substance abuse issue. Perhaps the police could use more training.

But police officers are not mental health workers and nor do the ones I've spoken with want to be. They are forced into the role due to a lack of community supports – supports that could have used the very funding Ford chose to cut. It would benefit both individuals with mental health issues, their families, and community safety to double down on treatment instead of doubling down on police. As the brilliant Vicky Mochama wrote last month – "Toronto’s vulnerable communities need better services not more police."

But leadership from Ford on firearms and mental health seems to be too much to ask. In that same City Newsinterview Ford echoed the ill-informed position of his Attorney General, Caroline Mulroney, saying that part of the problem is that “when someone gets arrested on Friday night with a gun and they are out on parole on Wednesday morning.” This is an absurd claim that packs three factual errors into a succinct 19-word sentence. 

There is no evidence that the few people who are released on firearm charges are responsible for shootings, or that people charged with firearms offence are being granted bail inappropriately. And parole has nothing to do with bail.

At the end of the day we are left with shaken communities that are desperate for solutions and political reactions that are partisan, unrealistic, ill-informed and counterproductive. 

But this is the way it has always been and the horror on the Danforth seems to have done little to change things.

AG Mulroney's big debut is a throwback fail

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Ontario’s new Attorney General Caroline Mulroney is going to face a steep learning curve when it comes to criminal justice issues. And she had better learn quickly because there is indeed a crisis in Ontario’s criminal courts. Cases take too long to complete, current systems and procedures are antiquated and inefficient and the chronic underfunding of the legal aid system has resulted in unprecedented levels of unfairness and injustice. 

Mulroney, by all accounts a skilled and intelligent lawyer, has never practised criminal law. In fact, she has never practised law in Ontario at all. It is difficult for a general to know what life is like in the trenches when they have never set foot on the battlefield. 

In addition to her inexperience, if Mulroney is to be successful, she will need to overcome the handicap of knee-jerk Conservative ideology. Heavy-handed criminal justice responses to complex social problems was a defining feature of the Stephen Harper government. For a decade, Ottawa ignored evidence-based justice policy in favour of tough-on-crime rhetoric. The results were predicable — unconstitutional laws, clogged courts, ballooning justice costs and a dumbing down of important social policy discussions. 

Unfortunately, it did not take long for Mulroney to give in to the siren song of simplistic, political, uninformed and counterproductive approaches to criminal justice. 

After a cluster of shootings over the Canada Day weekend, Toronto Mayor John Tory demanded that the provincial government “toughen up bail guidelines” for gun crimes. Tory doubled down on his bail rhetoric, saying, “We can’t have people getting out on bail 20 minutes after they’re arrested for using a gun.” 

He demanded that Mulroney instruct her Crown attorneys to deny bail to accused criminals with a prior record of convictions for gun crimes.

Before we get to Mulroney’s response, I’ll let you in on a secret: No one accused of a gun crime is released on bail 20 minutes after their arrest — not unless the accused is a police officer

Tory presented no evidence that the recent Toronto shootings were committed by suspects who had been released on bail. And he seemed content to ignore the fact that it is judges — not Crown attorneys — who make final decisions about bail. In fact, for years, Ontario’s Crown attorneys have been instructed that they must seek a detention order in all cases involving firearms offences, absent exceptional circumstances.

Mulroney could have responded to Tory’s counterfactual rhetoric with the authority and dignity that should come with her office. She could have told Tory that his “easy answers” are not supported by the criminological evidence. She could have pointed out that there is no evidence that any of the Toronto shootings were committed by someone out on bail for a previous shooting. She could have acknowledged that firearms offences are serious but pushed back on Tory’s strawman 20-minute bail arguments. She could have calmly explained that real solutions to gun violence involve building relationships with communities, tackling the hopelessness and poverty that plague our cities and progressive drug policies including robust addiction treatment.

Instead, Mulroney blamed the federal government, saying that both the city and the province are “dealing with a federal bail system that is letting too many violent criminals back into our streets. 

“This absolutely has to change,” she said. 

Mulroney then demanded a meeting with federal Justice Minister Jody Wilson-Raybould to discuss bail reform.

Mulroney has not elaborated on what kind of changes she would like to see at the federal level. Serious gun crimes and offences committed while on bail are already subject to reverse-onus bail provisions. This means that, unlike other offences, it is the accused who must satisfy a court that they are safe to release — not the state that must show why they should be detained. It is already the case that serious offenders will be detained if they pose a risk to the public. Heck, federal law also allows serious offenders to be detained even if they don’t pose a risk to the public but if their release would nonetheless undermine confidence in the justice system.

So, what sort of bail reforms does Mulroney want? 

My guess is that she has absolutely no idea. My guess is that Mulroney sees a political firestorm and also a political opportunity. Shootings are scary and, despite the fact that crime rates are at historic lows, it is easy for people to give into fear when shots ring out in their neighbourhood. It is easier for politicians to peddle tough-on-crime misinformation to voters than to explain complicated and nuanced long-term solutions. And what better way to satisfy a Conservative base then take disingenuous shots at a federal Liberal government.

It is disappointing that Mulroney’s first act as Ontario’s attorney general was to continue and encourage a troubling trend of cheap, reactionary and ineffective justice balderdash. Ontario’s justice problems are simply too big for the same old political solutions. If Mulroney can’t resist the temptation to fall into Harper-like justice policy, it will be a long four years, and at the end of her term, Ontario will be a more dangerous province.