Following the decade-long reign of a prime minister determined to erase the Liberal Party’s imprint on the justice system, Justin Trudeau inherits a tough-on-crime approach and judicial appointment processes vastly different than the ones left behind by his party forebears. Here are 11 pressing items on the next prime minister’s justice agenda.
1. Legalization of marijuana: A big job. Also the one most closely associated with the prime minister-designate. Decriminalizing would be a simpler, halfway step – say, by authorizing police to fine those caught smoking a joint. Mr. Trudeau’s approach raises questions about taxation, health and the role of the medical profession, use by teenagers, impaired driving, consumption rates and the involvement of organized crime. His platform promises a federal-provincial task force, assisted by police, health and addictions experts, to design a sales and distribution system with “appropriate federal and provincial excise taxes.” It also promises an increase in penalties for illegal trafficking (as opposed to the soon-to-be legal kind), selling to minors and driving under the influence.
2. Bill C-51: The Liberals voted for the Conservatives’ popular anti-terror bill drafted this year in the wake of two terror attacks in Canada, including one on Parliament itself, but the party platform said they will “repeal the more problematic elements,” including the clause purporting to allow judges to authorize civilian spies to violate Charter rights. They also promised to create an all-party oversight committee for national security matters. On a signature file of the Conservatives, will there be anything left once the Liberals start tweaking and repealing?
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3. Right to die: Fraught. Last February, the Supreme Court affirmed a right to an assisted suicide for individuals with a “grievous and irremediable medical condition causing enduring suffering,” whether physical or psychological. The court suspended its unanimous ruling for one year to give governments time to draw up rules if they wished. So the Trudeau government has four options: set up a consultation process, perhaps similar to the one for marijuana legalization, to create rules around who qualifies and how; leave the Conservatives’ consultative panel in place, though two of the three panelists opposed the right to an assisted death; scrap that panel and do nothing; or plead for an extension from the Supreme Court. Not a partisan issue, but a governance issue on which a new group can make its mark, for better or worse.
4. Supreme Court appointment process: Parliament’s involvement is dead; Stephen Harper killed it. Now what? In 2004, the Liberals created a parliamentary hearing, with the Justice Minister publicly explaining the government’s choice of a new Supreme Court judge. In 2005, the Liberals created a selection committee to take a medium-sized list of five to eight candidates down to a short list of three for the Prime Minister to choose from; the committee featured parliamentarians, legal experts and laypeople. Mr. Harper went further than the Liberals: He put his Supreme Court appointee in the hot seat in a parliamentary hearing, in a major contribution to transparency. He also kicked the legal community and laypeople off the selection committee, putting his party’s representatives in the majority in the last Parliament. But then he killed his own reforms after The Globe revealed the machinations behind the failed 2013 appointment of Supreme Court justice Marc Nadon. Parliament is no longer involved in the selection at the front end or the hearing at the back end. Will Mr. Trudeau tolerate such secrecy in the Charter age – the age his father did so much to create?
5. Judicial appointment process (lower courts): The Conservatives made major changes to the 17 committees across Canada that screen candidates for federally appointed courts, such as superior and appeal courts in the provinces. They gave the government’s appointees a voting majority. (The country’s chief justices protested, but to no avail.) They put a police representative on the committees. They took away the committees’ power to say which candidates they “highly recommend.” The result: The government could put its imprint deeply on the bench in an opaque system. Will the Liberals look for new, more democratic models, perhaps by adding laypeople to the committees?
6. Solitary confinement: The high-profile suicides of Ashley Smith and Eddie Snowshoe in federal prison during the Conservative years in power drew attention to Canada’s use of extended segregation. Ms. Smith spent nearly a year in solitary, Mr. Snowshoe 162 days. And the numbers in solitary have been on the rise under the Conservatives. Former Supreme Court justice Louise Arbour says it should be scrapped as a “barbaric cultural practice” – a reference to a Conservative law proscribing honour killings and forced marriages. The Conservatives defended the use of solitary by saying they are rebalancing the justice system, to make it fairer to victims. Will the Liberals take another look?
7. Undoing the tough-on-crime agenda:
i. Dealing with court challenges (criminal): Challenges are before the courts on mandatory minimum sentences for growing six or more marijuana plants; on a victim surcharge that all convicted criminals must pay, including impecunious ones; on the stripping of citizenship from convicted terrorists who are dual citizens; and on the doubling of the waiting period to receive a pardon for certain crimes. (To name a few.) The Liberals will need to decide whether to continue the fight for these Conservative-era laws or drop the laws.
ii. Reducing the number of prisoners: The number of federal prisoners rose to an all-time high under the Conservatives, even as the crime rate fell. And the costs rose sharply, too, even as many federal departments had their budgets cut. What will the Liberals do about it? Will they restore the conditional sentences – usually known as house arrest – created in 1996 by Liberal justice minister Allan Rock?
iii. Addressing the rising proportion of aboriginal prisoners: The tough-on-crime agenda has fallen most harshly on aboriginals, who now make up 23.2 per cent of the 15,000-plus federal prisoners, though they are just 4 per cent of the population. Despite a Liberal sentencing law that requires special treatment in sentencing for aboriginals, their numbers have soared under the Conservatives. Will a Liberal government give this area extra attention?
iv. Abolishing mandatory sentences: A key battleground between Parliament and the judges. The Conservatives tied judges’ hands by creating a whopping 60 minimums for drugs, guns, sex offences and other crimes. The Liberals say they don’t believe in mandatory minimums for most crimes. But by excising them, they run the risk of being seen as soft on crime, perhaps even tolerant of child sexual abuse.
v. Changing the ground rules for murder, sentencing and non-violent crime: The Conservatives got rid of the faint-hope clause that gave convicted murderers a chance at parole after 15 years. They also allowed parole-eligibility periods to be added together, so that multiple killers may face 50, 75 or more years in prison. Their Truth in Sentencing Act, though watered down by the Supreme Court from the stated objective of one day credit for each day in pretrial custody, did reduce the near-automatic credit for each day served to 1.5 days, down from two. And the Conservatives abolished near-automatic early parole for first-time non-violent federal offenders. Would the Liberals see a political gain in messing with any of that?
And what measures would they create on the other side to show that they are not wimps on crime? The platform offered minor ideas, such as increasing the maximum sentence for repeat wife abusers.
8. Reviving a law reform body: In the Conservatives’ first year in power, they abolished the Law Commission of Canada, an independent body set up in 1971 (when it was known as the Law Reform Commission) to give independent advice on law to the Canadian government. Will the Liberals give it life again?
9. Funding Charter challenges: Also in their first year, the Conservatives killed government funding for the Court Challenges Program, which the Liberals set up in 1994 to subsidize language and equality court cases under the Charter of Rights and Freedoms. The Charter is now three decades old, but the successful challenges keep coming – or at least, they did during the Harper years. Will the funding return?
10. Barbaric cultural practices hotline: Will the Liberals, who accused Mr. Harper of dividing the country during the election, change the name of this law? Scrap the snitch line? Abolish the law altogether, in recognition that the elements in it (such as forced marriage and honour killings) are already illegal?
11. Dealing with court challenges (non-criminal): In the niqab case, which became a hot-button election issue, a Muslim woman challenged the government’s 2011 ban on the wearing of a face veil during the citizenship oath. Lower courts rejected the ban, and the Conservative government asked the Supreme Court to hear its appeal of those rejections. Separately, the Federal Court in Ottawa called the Conservatives’ health-care cuts to refugees “cruel and unusual treatment” under the 1982 Charter – the only time a non-criminal law has been described this way. And a civil-servants’ union is challenging Bill C-59, which gives the government the power to remove sick leave and impose disability plans outside of collective agreements. The Liberals could stop the challenges by throwing out these laws.
SEAN FINE – JUSTICE WRITER
The Globe and Mail
Published Tuesday, Oct. 20, 2015 11:47AM EDT
Last updated Wednesday, Oct. 21, 2015 2:15PM EDT