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prescriptive. And, subject to the limits of cruel and unusual punishment, it is also their right (and, indeed, their responsi- bility) to respond to public anxiety about crime. But, this increasingly punitive approach places an immense burden on [defence counsel] to protect [their] cli- ents from unjust punishments." The judges all promote prevention outside the courts and jails, and pro- grams to help those convicted of crimes rehabilitate once they are in the criminal justice system. Of course McMurtry, who is now chancellor of York University, was attorney general in the Ontario Progressive Conservative Party's "big blue machine" in the 1970s before becoming a judge. They respect the role of the majority of Parliament but McMurtry says judicial discre- tion is a major concern. "Whether we are happy with the legislation or not, and many people are clearly unhappy with it, I think it has to be recognized that Parliament has the right to enact this legislation and generally speaking I don't think that it is an issue of judicial indepen- dence, that is where I think some people get confused," he says. "Now this issue of saying judges have to write reasons for not including res- titution orders, I think to me that seems rather silly, I mean if judges ignore it, what is the result?" Judges, however, don't have a problem explaining themselves, says Wachowich. In fact, explanations are almost ubiquitous in decisions made by judges. "The days of judg- es saying, 'Stand up prisoner, six months, lock him up, goodbye,' are long gone. Now just about in every sentence there is an explanation one way or the other as to why that sen- tence was imposed for the length of time and why that prisoner may be given some credit." Wachowich's issue with the white- collar crime rules, in particular, has nothing to do with judges explain- ing themselves but rather that resti- tution orders are often pointless. "So far as fraud cases are concerned it is not uncommon that the judge issues an order that the individual has to reimburse the other party. The problem with a lot of those cases though is we find out during submissions that the person who committed the fraud presently is a man of straw." Along the same lines, is there any point in passing sentences that will never succeed, such as 200 years in jail with- out parole? Is there a point to creat- ing laws that prove to be meaningless because they can never be enforced? University of Ottawa law professor Errol Mendes is less measured when it comes STATUS OF CURRENT LAW-AND-ORDER LEGISLATION Bill C-14: An act to amend the Criminal Code (organized crime and protection of justice system participants) — mandatory minimums. In force Oct. 2, 2009. www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?La nguage=E&query=5737&Session=22&List=toc Bill C-15: An act to amend the Controlled Drugs and Substances Act and to make related and con- sequential amendments to other acts. Changes made in Senate committee Dec. 3, 2009. www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?La nguage=E&query=5739&Session=22&List=toc Bill C-25: An act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody) (Truth in Sentencing Act). Royal assent Oct 22, 2009. www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?La nguage=E&query=5773&Session=22&List=toc Bill C-26: An act to amend the Criminal Code (auto theft and trafficking in property obtained by crime). Currently with the Senate committee on legal and constitutional affairs. www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?La nguage=E&query=5790&Session=22&List=toc Bill C-36: An act to amend the Criminal Code (repeal of the "faint hope" clause). Passed third reading in Commons Nov. 25, 2009. www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?La nguage=E&query=5858&Session=22&List=toc Bill C-52: An act to amend the Criminal Code (sentencing for fraud) (retribution on behalf of vic- tims of white collar crime act). Currently with the Commons justice committee. www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?La nguage=E&query=5934&Session=22&List=toc Bill C-54: An act to amend the Criminal Code and to make consequential amendments to the National Defence Act (protecting Canadians by ending sentence discounts for multiple murders act). First reading Oct. 28, 2009. www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?La nguage=E&query=5942&Session=22&List=toc 36 J A NU A R Y 2010 www. C ANADIAN Law ye rmag.com to looking at the federal government's law-and-order platform. He believes the government is just playing politics with criminal law policy. Two examples of this may be the removal of concurrent parole eligibility and last summer's bill C-36, the repeal of the "faint hope clause" allowing first-degree murderers to apply for parole after 17 years in jail. The faint hope clause was brought to the attention of the public when Clifford Olson, con- victed of murdering 11 children, applied for early parole and was denied in 1997. "[It's] fantastic retail politics, who in Canada has any sympathy for the Olsons of this world," says Mendes of bill C-36. The professor takes strong issue with the new white-collar crime rules, questioning whether locking up white-collar criminals will be enough to protect Canadians. "The new white-collar crime law is really interesting because again it points out the absolute absurdity of [the government] thinking that this is going to increase security in terms of victims of white-collar crime," he says. "They are focusing so much on sentencing and restitution, all the experts are saying the key thing for white-collar crime is to put in the surveillance systems to prevent it happening in the first place, and that is what is needed rather than sticking white-collar criminals into prison." He supports the federal govern- ment's efforts to create harmonized securities laws across the country, but again, points out that even hav- ing a single commission to oversee securities law won't make a differ- ence without the enforcement to back it up. He suggests the criminal bar in Canada needs to start examin- ing whether the combined amend- ments will actually reduce crime. Greg DelBigio, past chairman of the Canadian Bar Association's criminal justice section, says perhaps those examining the amendments and proposed amendments need to look at them with a different lens. He says one key may be to examine the record of parliamentary proceed- ings to best understand what the