Law-and-order bill riles criminal lawyers

The government’s new omnibus criminal law bill should be carefully scrutinized and not the subject of a confidence vote, say criminal lawyers who are ready to make submissions on the new legislation.
Bill C-2, named the tackling violent crime act, is made up of five previous criminal law bills introduced last year, which all died at various stages when Prime Minister Stephen Harper prorogued Parliament earlier this year.

William Trudell, president of the Canadian Council of Criminal Defence Lawyers (CCCDL), tells Law Times that the fact that there will be a confidence vote and either the bill is passed “as is” or there will be an election is “wrong.”

He adds that he has never seen anything like the way this bill was introduced.
Earlier this month, Justice Minister Rob Nicholson announced the act, saying: “If the opposition allows our throne speech to pass, they cannot obstruct our core priorities, including this bill. And to hold them to account, we will make bill C-2 a confidence bill.” The vote could happen as early as this week.

Several opposition parties have expressed their support for quickly moving the legislation along to the House of Commons standing committee on justice.

Frank Addario, president of the Criminal Lawyers’ Association, tells Law Times that the government is “plainly on the wrong track” to the extent that the legislation displays a “one-size-fits-all” approach to criminal law problems.

The fact that the legislation is packaged as an omnibus and linked to a confidence vote is “bad for civil liberties,” Addario adds.

“The vote is less about the wisdom of the legislation than it is about political considerations and, secondly, the committee work that’s typically done when smaller bills address specific issues is missing when they propose omnibus legislation,” he says.

The bill aims to introduce mandatory minimum penalties for firearms offences, including five years for a first offence or seven years for a second for crimes such as attempted murder and kidnapping. The legislation will also introduce new indictable offences of breaking and entering to steal a firearm, and robbery to steal a firearm.

Also included are provisions to change the age of consent from 14 to 16. The bill will also increase the penalties for impaired driving and authorize trained peace officers to conduct roadside sobriety tests and to take samples of bodily fluids to determine whether a person is impaired by a drug or a combination of alcohol and a drug.

Legislation that places a reverse onus on bail for those accused in firearms offences is also included in the act, as well as a presumption of dangerousness, requiring those convicted three or more times of violent or sexual crimes to convince the court why they should not be designated a dangerous offender. It will also require the Crown to declare in court whether or not it had considered a dangerous offender application in cases where a person is convicted of a third violent or sexual offence.

Reverse onus for gun offences is codifying what judges ordinarily do, says Addario. “In that respect, we understand why the government would want to make a legislative statement about gun crime and offenders who use guns,” he says.

Trudell adds that the onus is, in effect, shifted anyway in gun crimes and the legislation will clog up the bail courts, making things more difficult for justices of the peace.
Addario adds that on the dangerous offender provisions in particular, the association is opposed to anything creating a three-strikes type of law, as well as laws that take Crown discretion out of the law. Mandatory minimums, he adds, have also been an “abject failure” in the United States over the last 25 years.

In a submission to committee on the subject last year, the CCCDL asked that the mandatory minimums provision be amended to include a paragraph saying that the court will consider whether the minimum punishment is necessary, given factors such as the public interest and the needs of the community, giving some residual discretion to judges in these situations.

Consultations were not completed on all of the former bills, says Trudell, as the CCCDL was scheduled to but didn’t get the chance to present submissions on the dangerous offender bill before it was pulled. He says they are ready to make submissions on this issue. Addario says that he has not yet heard if groups will be able to make submissions.

NDP justice critic Joe Comartin reportedly told a news conference that he proposed the government separate the dangerous offender law from the other four laws, which have already been through most of the parliamentary process, so that committee hearings will not hold them up.

“Our reaction is that study is not complete; it would be an abdication of parliamentarians’ responsibility not to carefully scrutinize these bills. I think that one of the biggest things is to get the bill in committee,” says Trudell, adding that the new omnibus bill also has to be compared with the old bills for consistency.

“What we’re saying is, introduce what you want, but let it be studied by experts, don’t hold out false promises to victims,” says Trudell.
“These criminal pieces of legislation are going to affect everybody across the country,” he adds.
James Chaffe, president of the Ontario Crown Attorneys’ Association, was not available for comment.

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