The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50817
argue? There are no lobbyists seeking the release of multiple or mass mur- derers, nor will there ever be. What is unusual with the proposed non-concur- rent sentencing rules is the opportunity for judicial discretion, something rare in the government's latest raft of changes to Canada's criminal laws. Unlike many planks of the Conservative law-and-or- der platform, judges are free to stand on this one as they please. The same cannot be said for pro- posed legislation in bill C-15, manda- tory minimum drug sentences, except in the case of those guilty of producing less than 200 cannabis plants; bill C-52, new white-collar crime rules that force judges to explain themselves if they do not seek restitution in fraud cases; and bill C-26, ending conditional sentences for crimes including breaking and enter- ing, arson, and theft over $5,000 — auto theft. It's also not there in Bill C-25, removal of two-for-one credit for pretri- al custody, which received Royal assent last October. In a November speech to the Criminal Lawyers' Association, Ontario Court of Appeal Justice Marc Rosenberg, one of the leading criminal law judges in the country, pointed out how the govern- ment has barely bothered with any debate or input into its proposed changes to criminal law. "For a number of identifi- able reasons, the criminal justice system in this country has become increasingly risk averse. In an age where 15 seconds is a long time on a newscast and a tweet cannot contain more than 140 charac- ters, it is difficult to have an informed debate about sensible and effective penal policy or meaningful criminal justice reform, let alone discuss complex, multi- faceted, cross-over issues. . . ." In a Nov. 5 National Post article, Minister of Justice Rob Nicholson and his parliamentary secretary Daniel Petit, outlined their anti-crime plan as stand- ing "up for victims, not criminals." In the article, they described an announce- ment made by Minister of Public Safety Peter Van Loan who plans to abolish early parole for non-violent offenders: "This would put an end to our revolving door prison system and give priority to the rights of victims." Nicholson did not respond to requests for an interview for this article. The Conservative's legislative agenda of "standing up for victims" is consistent with its platform of "standing up for Canadians." The other side of the coin is what appears to be the ruling party's real view of the criminal justice system in Canada: it isn't tough enough. Over the next three years, Ottawa plans to spend $683 million to increase federal prison capacity. The money will come in handy according to Allan H. Wachowich, former chief justice of the in March. "The trend is there is discre- tion being removed from judges," he says. "If that is the way [Parliament] wants it to go, that is the way it will be, and it is hard for judges to tell Parliament how to pass their laws or what laws they should be passing. [But] I would hate to think there is an infer- ence that judges have failed and there- fore Parliament is acting." That inference, however, is almost impossible to avoid. Prime Minister Stephen Harper started a row a year ago when he inferred certain judges, appointed by the previous Liberal gov- "We've reached the stage that we could be in a new business in this country and that is the building of jails." — Allan H. Wachowich, former chief justice of the Alberta Court of Queen's Bench Alberta Court of Queen's Bench. "We've reached the stage that we could be in a new business in this country and that is the building of jails." He points to the Remand Centre in his hometown of Edmonton where those waiting for trial are often placed three to a cell. Taxpayers fork out $130 a day to pay to keep someone in remand. Conversely, proper monitoring with an ankle brace- let, reasonable controls, and probation officers to watch over a person awaiting trial, cost only $3.50 a day. He says the two-for-one pretrial consideration is sometimes appropriate where remand conditions are terrible. Still, recognizing his place on the tree of government, Wachowich under- stands the judicial branch's job is to deliver what the legislative branch pre- scribes. He does worry about the moti- vation for laws directing judges to do certain things at certain times. It's the trend and motivation for the laws rath- er than the laws themselves — he has never been a proponent of the idea that tougher sentences are a deterrence and create a safer society — that concerns Wachowich, who is a supernumerary judge until his compulsory retirement ernment, have their own social agenda. This point was further driven home during a speech given to Conservative party faithful in Sault Ste. Marie, Ont., last year. "Imagine how many left-wing ideologues they would be putting in the courts," if the Liberal party was still in power, said Harper. Former Ontario chief justice Roy McMurtry questions the criticizing of judges in the media and then direct- ing them in legislation. "I personally view that as meaningless and sometimes dangerous rhetoric," he says. "What gov- ernment should be focusing on, instead of setting aside additional resources for building prisons, they should be paying a lot more attention to prevention." Rosenberg was more direct in his CLA speech: Since 1996 amendments to the sentencing portion of the Criminal Code, "Parliament has become increas- ingly prescriptive about sentencing — prescribing minimum penalties, pre- scribing aggravating factors that must be taken into account, and narrowing, almost to the vanishing point, the cir- cumstances in which a conditional sen- tence can be imposed," he said. "Of course, it is Parliament's right to be www. C ANADIAN Law ye rmag.com J A NU A R Y 2010 35