OTTAWA – An unlikely alliance of Crown and defence lawyers has shaped up in the confines of Canada’s Senate.
The two sides have shed their robes as courtroom foes to share witness space at the Senate legal and constitutional affairs committee and point out what they say will be the downsides of the government’s proposed crime laws, including bill C-15 that will set mandatory minimum sentences for drug crimes.
“Bill C-15 will significantly increase the trial rates with respect to these particular charges, reduce the guilty pleas, and equate into higher workload, which must be supported by the resources,” says Jamie Chaffe, president of the Canadian Association of Crown Counsel.
“If it is not supported by the resources, then these prosecutions will come at the expense of other prosecutions of other criminal offences. When we’re talking about adding criminal justice resources, we’re talking about the infrastructure, which includes Crowns, legal aid funding, probation, parole, and corrections, as well as the judiciary.”
Besides concerns over the drug law, lawyers have also been expressing their views on Bill C-25, which amends the Criminal Code to limit credit for time spent in custody before sentencing to one day for each day in remand, down from the Supreme Court of Canada benchmark of two days’ credit for each day of pre-sentence custody.
Only in circumstances that “justify it” could a judge award more credit to a maximum of 11/2 days for each day in remand.
A string of witnesses lined up to question the new limits, citing deplorable and overcrowded conditions at most provincial remand centres as well as the unfair result the change could have on some inmates since pre-sentencing dead time is not credited for parole purposes.
Despite the criticism, all or most of the crime legislation the government is advancing will likely pass through the Senate.
Liberal Leader Michael Ignatieff has been under relentless pressure from Justice Minister Rob Nicholson and Prime Minister Stephen Harper, both of whom regularly accuse him and his party of being “soft on crime.”
To blunt the attack, Ignatieff last week ordered his Senate leadership to ensure enough Liberal senators were absent for a vote on the C-25 amendments to allow the Tories to defeat them, a Liberal source says.
The Liberal changes would have set credit for pre-sentence custody at 11/2 days for each day served with a maximum of two days under justifying circumstances.
But they went down to defeat in a little-noticed vote last Tuesday, and the Liberals allowed the bill to pass through to royal assent by Thursday.
The vote was a sign that all of the Harper government’s 12 other bills on a range of justice issues - including an end to conditional sentencing for property and serious crimes - will eventually become law.
Under bill C-15, for example, the courts would impose mandatory minimum sentences for a range of drug possession, production, and trafficking offences. The changes include a mandatory minimum sentence of six months if an individual is convicted of growing more than five and less than 201 marijuana plants for the purpose of trafficking.
The minimum would be set at nine months for the same amount of marijuana if any of a series of health and safety threats is associated with the production, including a potential hazard to anyone under 18 where the drug was being grown or a public safety hazard in a residential area.
If the number of plants is more than 200 but less than 501, the mandatory minimum would be one year in prison. That increases to a minimum of 18 months if health and safety risks are associated with the production.
If the production is more than 500 plants, the mandatory minimum increases to two years or three years if any of the health and safety risks are present at the production site.
The Canadian Association of Crown Counsel told the Senate committee both the drug and dead-time bills would inevitably lead to pressure on the courts and overcrowded prisons.
Although it was acknowledged the new C-25 limit on credit for time served will likely prompt a rise in the number of early guilty pleas and thereby reduce the number of prisoners in remand, it was also argued that courts will be under severe strain to schedule earlier appearances and processing for accused who plead guilty.
At the same time, the mandatory minimums for drug offences will also place a burden on the courts as accused will be unable to reduce sentences through plea bargaining.
Chaffe, who testified at the Senate committee on both bills on behalf of the Crown counsel association, explains he wasn’t taking a position for or against them.
“We’re not opposing anything,” he says. “All we’re talking about is what will practically happen on the ground if they are brought in.”