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A Criminal Mind: Farming crime bills to backbenchers leaves justice agenda a mess

The federal criminal justice legislative agenda is a mess, not just because so many of the government’s recently enacted and currently proposed laws are either pointless or regressive but also because of the rank amateurism that now seems to pervade the legislative process.

A recent series of articles in The Globe & Mail has detailed the extent of the disarray. The sheer carelessness on display by parliamentarians of all parties is breathtaking. The wrong version of the dubiously titled fairness for victims act went to the Senate for approval. Moreover, the House of Commons unanimously approved the bill without anyone pointing out an obvious constitutional flaw in one of the core provisions. The bill will increase the period of time an unsuccessful applicant for parole must wait before reapplying to five years. It purports to apply this new rule retrospectively to prisoners already in the system.

Earlier this year, however, the Supreme Court in Canada (Attorney General) v. Whaling held that the retrospective abolition of early parole violated the double-jeopardy clause under the Charter of Rights and Freedoms. Now conceivably, there may be a theory distinguishing this new law from Whaling and upholding its constitutionality. That’s what the government pays lawyers for. But nobody in the House of Commons tried that because nobody spotted the issue. And the problem wasn’t an obscure bit of legal arcana; it was an issue flagged mere months before by a heavily publicized Supreme Court ruling on materially similar facts. That this wasn’t at the forefront of the minds of those who approved the new law betrays a shocking lack of knowledge and attention on the part of lawmakers. The Supreme Court is just down the block. It puts its stuff online. And this wasn’t a vote to congratulate a volleyball team or name a new post office; it was an effort to deprive a lot of people of basic liberty for lengthy periods of time. I’d say it deserved a bit more care than Parliament appears to have given it.

Where were the government lawyers in all of this? That’s an interesting story. Again, according to the Globe, backbenchers have tabled 25 out of 30 current or recently passed crime bills. In the case of the fairness to victims act, Conservative MP David Sweet had introduced the bill.

The important point is that these private member’s bills receive no scrutiny from Justice Department lawyers for constitutionality. It seems to me that they receive little scrutiny for anything by anyone. It used to be the case that such scrutiny wasn’t necessary because private member’s bills never became law anyway. What changed?

It’s certainly not a flowering of representative democracy or MP empowerment. As detailed in a National Post excerpt of former Conservative MP Brent Rathgeber’s new book, calling contemporary government MPs trained seals is an insult to the independence of a noble mammal. It doesn’t take a cynic to recognize that sending these bills through Parliament on the private member’s track has the collateral effect of shielding legislative efforts from scrutiny by the people who have the training and inclination to ask tough questions.

I wrote my last column on the theme of excessive criminalization from a broadly philosophical perspective.

Anyone wishing to see this phenomenon in action on a very prosaic level can do as I did recently by going to the bills before Parliament section of the main Parliamentary web site and typing Criminal Code into the search engine.

For example, backbench Ontario MP David Tilson tabled a bill making it a specific offence to deface a war memorial. That was already a crime as the offence of mischief has always made such acts punishable, but this new provision has the added bonus of a mandatory $1,000 fine for a first offence and jail thereafter. Repeat offenders can get up to 10 years in prison. Who are these serial cenotaph defacers? They must exist or Parliament wouldn’t go to the trouble of enacting a special legal regime to deal with them, right?

Before a Senate committee, Tilson talked about the case of someone throwing eggs at a memorial in Orangeville, Ont. He was understandably upset and did some research on the Criminal Code. “When one of these honoured structures is vandalized or desecrated, it shocks and sickens us and rightly so,” he told the committee. “As the mischief section of the Criminal Code is currently written, however, cenotaphs and war memorials fall into the same category as a mailbox or a parking meter or other mundane property when it comes to penalties for vandalism. Mr. chairman, that’s just not right.”

Tilson is correct. Our Criminal Code does a poor job of carving out specific property offences based on the particular identity of the thing stolen, converted or defaced. The government recently took up this cause by enacting an offence of auto theft. And why stop there? No doubt there are other courageous parliamentarians waiting in the wings with victim-specific laws to crack down on harassment of war widows, cruelty to clergy, and fraud on orphans.

Members from other parties have gotten into the act as well, albeit to a lesser extent. NDP member Randall Garrison has stepped up to the plate with a proposed new offence of stealing copper wire or copper pipes from critical infrastructure. In a news release, he explained that copper theft is a pricey problem in the electricity sector and that by deterring it, “we can save Canadians money and protect our country’s critical assets which help keep our communities safe.” That may be so. However, I suspect copper theft has more to do with market conditions and enforcement capacity than the alleged legislative gap the proposed new law aims to fill.

In the 1970s, we had luminaries like Antonio Lamer and Martin Friedland at the Law Reform Commission developing proposals for systematic modernization and rationalization of our criminal law. The commission no longer exists. Now we have backbench MPs seeking out sentimental objects to which they can affix new minimum sentences. Some MPs and senators still do serious and honourable work on criminal justice issues outside of the spotlight. But overall, I’d like to think we could do a little better.


Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at mgourlay@hhllp.ca.


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