Canadian Lawyer

February 2021

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32 www.canadianlawyermag.com OPINION BACK PAGE Frankenstein's monster needs reforming As elected officials allow the Criminal Code to shamble forward, it's time to breathe life back into the Law Reform Commission THE CRIMINAL CODE is Frankenstein's monster: a punitive, unruly and bestial amalgam of provisions that have proven diffi- cult to control and impossible to reform. The federal Conservatives, under Stephen Harper's leadership, showed no shame in passing dozens of duplicative boutique laws to capitalize on the headlines of the day. If a war memorial was vandalized or a police dog injured, there was a new law for that, it seemed, even if the act was already illegal. Harper's Conservatives used justice legisla- tion as a political tough-on-crime wedge. This might have played to the party's Conservative base, but it did not work in court, where evidence rules the day. So, time and time again — on parole, pardons and restrictive sentencing laws such as mandatory minimums — Conservative legislation was struck down as unconstitutional. Enter Justin Trudeau's "sunny ways" Liberals. The Liberals promised to do better. They promised to repeal minimum sentencing and legislate based on evidence. In 2015, newly minted Prime Minister Trudeau instructed his justice minister to "conduct a review of the changes in our criminal justice system . . . to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system." The promised transformation never took place. Sure, there was some tinkering around the margins, but minimum sentences, pardon restrictions and much of the rest of Harper's unconstitutional laws remain untouched. The result of the Liberals' inaction is a patchwork of unconstitutional laws across Canada. The rules for obtaining a pardon are different depending on the province, and minimum sentences apply in some parts of the country but not in others. Equality before the law depends on equal and uniform application of the law. That is not the case because the Liberals have failed to live up to their promises. And despite some incremental progress on the legalization of cannabis consumption, the Criminal Code remains full of laws that crim- inalize addiction, mental health and poverty. Offences such as petty theft, driven by poverty, could be prevented with the proper invest- ments in social programs — or at the least diverted from the criminal system, leaving our courts to tackle serious and violent crimes. But due to legislative inaction, there are few solu- tions found in the Criminal Code. The result of decades of Criminal Code mad science is an unwieldy, unequal, ineffective and costly monster of a Criminal Code. It seems no one in Ottawa has the courage or principles to undertake the necessary reform. So, it is time to bring the federal Law Reform Commission back from the dead. The legislation creating the Law Reform Commission of Canada was introduced in 1970 by then Liberal Minister of Justice and Attorney General John Turner, and for 35 years (with a small interruption), the Law Reform Commission provided non-partisan advice to the Canadian government on necessary legal reforms, with a mandate to study and keep under review, on an ongoing basis, the laws of Canada, with a view to making recommenda- tions for their improvement. During debate on the bill to form the Commission in May 1970, then Conservative justice critic Eldon Mattison Woolliams noted that "although there is not one law for the rich and one for the poor, that is the case in its application. . . . So, there is discrimination. . . . The point I am making is that I hope this law commission will not just be a piece of window dressing." The Law Reform Commission received unanimous support from all members of Parliament in both houses, and the parlia- mentary record shows a level of intelligent and measured debate on legal matters that is unheard of today. The Law Reform Commission was one of the first victims of the Harper government. In 2006, less than a year after coming to power, the Conservative government eliminated the commission's funding, a politically expedient and short-sighted decision that saved a little more than $4 million. Perhaps, to quote the English novelist and Frankenstein author Mary Shelley, "Nothing is so painful to the human mind as a great and sudden change." So, as our elected officials are content to allow the Criminal Code, with all its unfair- ness, to shamble forward, it is past time we breathe life back into the Law Reform Commission of Canada. Michael Spratt is a criminal litigator and partner in Abergel Goldstein & Partners LLP in Ottawa. He often appears before the House of Commons and Senate to offer expert evidence on criminal legislation and policy. "The result of decades of Criminal Code mad science is an unwieldy, unequal, ineffective and costly monster of a Criminal Code."

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