Eight years ago, as Canadian crime rates continued their downward trend, Prime Minister Stephen Harper’s government introduced a bevy of “tough-on-crime” reforms in one stuffed piece of legislation.
The Harper government changed drug laws and youth sentencing, made it harder and costlier to get a pardon and changed laws around the detention of refugees and access to parole, as well as the rules guiding in-house arrests and anti-terrorism measures.
Harper’s government rebuffed the coalition of experts who gathered to call the bill an unnecessary and costly threat to human rights. Instead, they embraced what experts admit is good politics. (“Tough on crime” is catchy, appealing, said one criminal defence lawyer, while its opposite — “soft on crime” — is overwhelmingly not.)
When Prime Minister Justin Trudeau and his reinvigorated Liberal Party swept to power in 2015 and promised reform — legalizing cannabis because “it traps too many Canadians in the criminal justice system for minor, non-violent offenses” and repealing some mandatory minimums because of their “overuse and quite frankly abuse” — and a return to evidence-based policy, there was a sense of optimism and hope among many justice experts.
Four years later, has that promised reform materialized? Is Canada’s justice system any more, well, just?
The reviews are less than glowing:
“There’s a general sense of disappointment,” says Catherine Latimer, executive director of the John Howard Society of Canada.
“Lacklustre,” is the go-to term for Samantha McAleese, a PhD candidate at Carleton University whose research focuses on the collateral consequences of punishment in Canada.
“It’s like an iron fist in a velvet glove,” says Thomas Surmanski, a criminal defence lawyer at Robichaud’s Criminal Defence Litigation.
A government review of the Canadian criminal justice system from August 2019 found the Canadian system is seen to be an inefficient one, “crippled with delays.” It is a system in which people generally feel safe as crime is declining but where many victims and survivors find themselves “disillusioned and disappointed.”
The review found an inadequate use of restorative justice and suggested a refocus on prevention, diversion and rehabilitation — not punishment.
It also found that there is, still, an over-representation of Indigenous people and other people from marginalized communities in the Canadian justice system, a system it describes as “ill equipped” to deal with them, despite “disproportionately” targeting them.
Despite the review having been released in August, and reform having been a major platform in the last election, criminal justice policy has only recently entered the election headlines — the result of a question during the French-language leadership debate on how candidates would respond to a Quebec Superior Court ruling that deemed part of Canada’s law on assisted dying “unconstitutional.”
There is more to it than just assisted dying. Here are some of the things experts think Canadians should know about the last four years.
- Cannabis legalization
- Changes to impaired driving
- The myriad impacts of Bill C-75
- Assisted dying legislation
- Mandatory minimums
- No follow through on reversal of ‘punitive’ changes to the Criminal Records Act
- Sexual assault law changes
- Indigenous inmates, and solitary confinement
- What are the politicians promising now?
Cannabis legalization was a step in the right direction, says Lisa Jørgensen, a partner at Cooper Jørgensen (a law firm in Toronto specializing in criminal defence), but “their implementation leaves something to be desired.”
She has concerns over restrictions on who can buy and who can sell it. Many of those at the fore of “pushing for more appropriate, evidence-based understanding” of cannabis have been left out of legalization, Jørgensen says, and as a result of a “convoluted” act and disjointed provincial implementation, some people are still facing criminal sanctions.
McAleese says, on the pot file, there should have been “full and automatic expungement” of simple cannabis possession charges rather than a simple pardon. It’s a position experts have put forward for more than a year now.
Attempts to curb impaired driving
When the Liberal government announced changes to impaired driving laws, there was concern that they would be used to disproportionately target racialized people. The government’s message: don’t worry.
And then the amendment to Section 253 of the Criminal Code took effect last December and a piece of the legislation that hadn’t really caught the public’s eye yet took centre stage. Now, cops have the power to go into the home of someone suspected of drunk driving and ask for a breath sample up to two hours later. That means people who drive safely, go home and get drunk legally could be at risk, Jørgensen says.
“The increased police powers and increased intrusion of police into people’s private lives at home is deeply concerning and likely unconstitutional.”
In January, the government explained its reasoning.
“Mandatory alcohol screening only applies at the roadside, nowhere else. The law is clear on that,” said David Taylor, director of communications for the minister of justice and attorney general of Canada in a written statement.
“The ‘two-hour’ rule in the new impaired driving laws was put in place to limit the use of certain defences in drunk driving cases.”
Ongoing concerns about Bill C-75
In 2018, the Liberal government tabled Bill C-75, a massive piece of legislation geared toward overhauling the Canadian justice system. At the time, then-justice minister Jody Wilson-Raybould said it would do as the Liberals had promised and make the system more fair and more just.
There are two big problems with the bill, Jørgensen says. First, that it did away with preliminary inquiries in all but the most serious offences in a bid to reduce court delays, and second, that it removed peremptory challenges, which let either the Crown or the defence veto a juror without giving a reason.
Jury discrimination made headlines after 22-year-old Colten Boushie, an Indigenous man, was killed in Saskatchewan. The lawyer for Boushie’s family says he watched the lawyer for white farmer Gerald Stanley — accused in Boushie’s killing — use his peremptory challenges to strike five people who appeared Indigenous from the jury.
“That struck me as the worst kind of headlines-turned-into-policies legislating,” Jørgensen says.
Already, she said, concerns over the removal of peremptory challenges have spawned legal challenges across the country as people try to determine whether cases already ongoing at the time of Bill C-75 should or shouldn’t still be allowed to use peremptory vetoes.
And that’s just one change brought about by Bill C-75.
“I have recently been dealing with the shockwaves (of Bill C-75),” says Surmanski, who wrote at length last year about what the bill would actually mean.
The shockwaves he’s feeling now? That’s specifically because the bill eliminated preliminary inquiries for everyone not facing charges that carry the possibility of 14 or more years in prison.
The big reason for the headache, he says, is a few simple words. The bill never clarified whether it applied to cases or offences that pre-date when it came into force. And while some provinces let those whose cases or offences pre-date last month keep their preliminary inquiries, Ontario — where Surmanski practises — did not, and is now bringing motions before the court to try to eliminate all inquiries.
“It created chaos,” Surmanski says.
“We’re wasting all of these resources trying to figure out what to do because Bill C-75 didn’t have a sentence that said this section of legislation should be retrospective or prospective.”
And while court delays have long been a concern of the justice system, Surmanski and Jørgensen are among a cohort of lawyers who don’t think axing preliminary inquiries is an equitable solution.
“(They’re) one of the important tools that we use in a very small subset of cases to do a deeper dive into the information or evidence against somebody facing serious criminal charges,” says Jørgensen, adding the only statistics she’s ever seen indicate they’re used in maybe three per cent of criminal cases — “a very small sliver.”
And yet, she says, in those cases “they play a very important role in narrowing the issues that need to be determined to move the matter forward.” In some cases, she says, they are enough to avoid a trial altogether — whether because the person pleads guilty or the matter is withdrawn — and in others, they help narrow the scope enough to avoid a costly, lengthy trial.
So while attempts to reduce court delays is admirable, Jørgensen says the removal of preliminary inquiries “was deeply misguided.”
The legalization of assisted dying
Medical assistance in dying (MAID), is another example of a step in the right direction but implementation that “leaves something to be desired,” says Jørgensen.
“It puts us on the more progressive end of the scale internationally in terms of how we treat people who are dealing with insurmountable physiological problems that are causing them a great deal of pain,” she says.
Jørgensen called a Quebec court decision, which found the Criminal Code requirement that a death be “reasonably foreseeable” before someone is eligible for MAID, “one bright light” when it comes to fixing access issues. The “reasonably foreseeable” criterion was critiqued as restricting access because it did not actually come with a specific time period. The court decision also opens up access for those who are not suffering from a terminal or fatal illness.
One of the biggest priorities on the justice file for the Harper government was sentencing, says Kate Puddister, a professor of political science at the University of Guelph. Mandatory minimum sentences for crimes, a key policy change, was widely criticized.
Many hoped Trudeau would reform it — indeed, the Liberals hinted strongly they would and Trudeau spoke during his election campaign about their “use” and “abuse” — but that hope evaporated pretty quickly.
In January 2016, despite promises to review the tough-on-crime laws, the Liberals went to court to defend mandatory minimums. This despite the fact that, Puddister says, “we know from a great deal of research that mandatory minimums are generally ineffective at deterring crime and ineffective at decreasing recidivism.”
At the time, a spokesperson for the Department of Justice said the government was looking at reforming sentencing, “but it would be premature to comment on what legislative changes will be made or how individual litigation matters will be impacted.”
Despite their ineffectiveness, Puddister says sentencing is usually a government’s go-to area for policy change if they “really want to posture themselves as making changes to judicial policy.”
And if they actually want to address crime?
“We need to look at the front end,” she says. “Why are people being caught up in the system? What types of resources are they lacking? What types of access to services — childcare, health care, jobs, government — are they lacking?”
The promise to reverse ‘punitive’ changes to the Criminal Records Act
Almost immediately after the Liberal government was elected, Minister of Public Safety Ralph Goodale promised to overhaul what he called “punitive” changes made to the Criminal Records Act under Harper’s government.
First, Harper’s government changed pardons to record suspension (which means a record is still maintained by police), McAleese says, and then it got worse: it became more expensive for people to apply for a record suspension and the wait times before they were allowed to apply went up. That’s if you were even still eligible, she says — some people were excluded altogether.
Goodale came out, made his statement, there was a parliamentary study, and then, McAleese says, after all that work, “nothing was changed.”
“I think there was a huge lack of political will.”
Criminal lawyers spoke out about this lack of action earlier this year, with Michael Lacy, partner at Brauti Thorning LLP and president of Ontario’s Criminal Lawyers’ Association, telling Legal Feeds:
“The Liberal government has fallen far short of their commitment to revisit oppressive legislative changes enacted by the predecessor government arising from the ‘tough on crime agenda.’”
The ramifications of complicating the pardon process are huge, McAleese stresses.
“Increasingly it’s becoming hard for people with criminal records to find housing… because landlords are increasingly asking for record checks as part of the (application) process,” she says.
Without housing, they’re either going back to emergency shelters or, sometimes, back to prison “as a result of being homeless.”
“That puts additional costs overall on our system,” she says. “If we just had a system in place that actually supported community integration for folks who have criminal records there would be cost savings and social benefits across the board.”
Changes to sexual assault laws
In 2017, the Liberal government announced it planned to change sexual assault law in Canada in order to make it completely clear that a person who is unconscious cannot consent to sexual activity. Bill C-51 passed last December. But it also introduced a provision that lawyers like Surmanski and Jørgensen find problematic.
Now, a victim can have their own lawyer present during proceedings in addition to the Crown prosecutor, which was used during the Joshua Boyle trial last spring to allow the victim’s lawyer to also cross-examine the defendant.
“I saw it as an unreasonable response to (Jian) Ghomeshi,” says Surmanski. “This is creating a tripartite system where there’s the accused, the complainant, and the government of Canada.”
As a result of the change, Jørgensen says the defence now has to provide “reverse disclosure” to the Crown if they’re planning to include any communications between accused and complainant that are of a sexual nature forward at trial.
It reverses the presumption of innocence until proven guilty, she says, and if the person making an accusation can see that information before trial then “you’re not getting a true and organic look at their reliability.”
That’s a big problem, Jørgensen says.
“This system has to be fair or we risk wrongful convictions and all of the potentially damaging consequences.”
Indigenous inmates and solitary confinement
The final report from the Canadian criminal justice review in August suggested “more concrete and specific steps” be taken to address the overrepresentation of Indigenous people in prison.
Rewind to the 1960s when the government first started to address Indigenous incarceration records, says Vicki Chartrand, a professor at Bishop’s University with 15 years of prison expertise who wrote an article about systemic racism against Indigenous people in Canada’s criminal justice system.
Since then, Chartrand says, there have been numerous reforms.
“They’ve introduced restorative justice, Aboriginal courts, Gladue, the whole gamut, but despite all this, despite all these reforms, we’re only seeing increases in Indigenous incarceration,” she says. “It’s getting more complicated for Indigenous people to navigate this system in order to get out.”
Harper might have implemented “draconian policies,” she says, but with Trudeau “we’re actually seeing even more backhanded, even more aggressive policies.”
One example? Bill C-83. It purports to eliminate segregation — the subject of repeated court cases — by introducing “structured intervention units” for people in prison who can’t be kept in the main population. And yet, the bill and those units have raised concerns from lawyers and advocates who say what’s being proposed is too vague without the oversight necessary to prevent abuse.
Sen. Kim Pate, who is an expert in human rights and criminal justice, wrote in June that “the bill will not merely maintain the status quo, it will make things much worse” because of a lack of oversight and accountability.
What are the politicians promising now?
Although the political headlines have yet to spend much time on criminal justice policy — the exception being, perhaps, the Liberals’ gun-control plan — the Liberal, Green, NDP and Conservative platforms all make mention of justice issues.
The Liberal focus is on support to survivors of sexual assault and intimate partner violence, as well as efforts to better “address the root causes of crime and help break the cycle of reoffending.” It also includes plans to make it mandatory for judges to take sexual assault training (a bill brought forward by Rona Ambrose that died in the Senate).
The Conservative plan continues to focus heavily on sentencing, including adding sexual crimes against children as an aggravating factor in the Criminal Code and creating a five-year mandatory minimum sentence for people convicted of a serious sexual offence against children. Their plans also include renewing the national action plan to combat human trafficking, ensuring human traffickers receive consecutive sentences. They would also ensure no automatic bail for human traffickers or gang members and would focus on new and “tougher” sentences for gang crime.
The NDP platform calls the existing system “overburdened, slow” and unfair. The party promises to reduce the “reliance” on mandatory minimums, make sure the Gladue principles are “consistently applied” and expunge minor cannabis possession criminal records. The party also pledges to increase funding for legal aid programs across Canada.
The Green Party says its priority will be a “justice reform agenda” to increase access and fairness. The party’s platform highlights the way in which the existing system “criminalizes far too many Indigenous persons, members of visible minority communities and people suffering from mental illness, homelessness and addiction.” Among other promises, the Greens would eliminate mandatory minimums, eliminate solitary confinement in prison, and spend more money on rehabilitating prisoners, especially those who are Indigenous and women.
An emphasis on rehabilitation is important but lacking, says Puddister.
“I would like some promises made or some conversation about what happens to people when they’re in the justice system and what happens to them when they come out,” she says. “A lot of people are coming in and out of the system constantly because they’re not getting the support that they need… How do we help people who have come into contact with the justice system reintegrate?”
If people were to focus less on “sensationalized stories or these tough-on-crime sentiments and actually started listening to experts and people with lived experience, then we can talk about what actually works to prevent violence and harm in our communities,” McAleese says.
“When we put proper social and community supports in place to address the root causes of crime then we’re all better off.”