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Michael Spratt

Trudeau’s government should act on promises of justice reform

Last month at the 44th annual Criminal Lawyers’ Association conference, Canada’s Minister of Justice and Attorney General Jody Wilson-Raybould delivered the prestigious Spokina lecture. She said a lot of words. She told the audience the Liberal government was intent on moving forward with restorative justice initiatives, reducing the over-incarceration of indigenous people and ensuring Canada’s criminal laws are in compliance with the Charter of Rights and Freedoms. 

The minister went on to speak of the need for transformational justice reform and highlighted the all-too-obvious problems of overflowing court dockets and the disproportionate criminalization and incarceration of minorities and marginalized groups.

Next up was judicial discretion. Wilson-Raybould said restoring judicial discretion was an issue of the upmost importance — telling the crowd that justice cannot be a one-size-fits-all proposition. Specifically, she said that mandatory minimum sentences were a priority for change and promised that reforms were coming.

Wilson-Raybould’s speech was greeted with thundering applause and a standing ovation.

But not by me.

I was not at the Sopinka lecture to hear the justice minister’s words. I was in my office — hundreds of kilometres away from the adoring crowds — preparing arguments for a constitutional challenge to the Conservative government’s retroactive pardon restrictions. Shockingly, the Liberal government’s lawyers are vigorously defending the Conservative law.

Words matter, but actions matter more.

Last January, Public Safety Minister Ralph Goodale described the former Conservative government as having “a certain ideology and a certain approach that needs to be re-examined.” Goodale went on to describe the retroactive pardon changes as “punitive” — his lawyers are now arguing exactly the opposite.

There have been words but no action by Goodale or the Liberal government on the pardon file — except to defend Stephen Harper’s ideological law.

Malaise seems to be the modus operandi of the Liberal government when it comes to justice issues.

Take, for example, marijuana legalization. At the same time that Wilson-Raybould was quite rightly bemoaning the disproportionate representation of minorities and indigenous offenders in the criminal justice system, the prosecution of marijuana offences continues unabated.

The irony would be delicious if it weren’t so tragic. Marijuana criminalization imposes unreasonable penalties on a relatively low-risk vice. And the distasteful irony is that those penalized are almost always those already marginalized — people living in low-income, over-policed communities and members of visible minorities.

Wilson-Raybould told the clapping lawyers that systemic racism must be routed out of the justice system as a disproportionate number of visible minorities are being arrested, prosecuted and jailed.

If only she had the power to do something about it — except she does. Wilson-Raybould could call off her prosecutors or advocate for decriminalization while we wait for the endless Liberal marijuana consultation to conclude, but she has refused.

Again, her words are not reconcilable with her actions.

The absence of any real justice reform has been shocking. But wait, you say, what about the newly announced legislation to bring fairness back to the victim fine surcharge, the backbreaking mandatory fine imposed on even the most marginalized and impoverished offender?

In her speech, Wilson-Raybould agreed with an Ontario judge’s characterization of this measure as a tax on “broken souls.” Yet, it took more than a year for the government to introduce the simplest of legislation to fix the problem.

And what about Wilson-Raybould’s “priority” — mandatory minimum sentences? The overwhelming weight of expert evidence shows that minimum sentences not only do nothing to prevent crime but actually result in an increased likelihood of recidivism. Minimum sentences actually make our streets more dangerous and represent myopic criminal justice policy born of a failed tough-on-crime ideology.

For all of the justice minister’s words, there has been little concrete action.

As was the case with the victim fine surcharge, there are simple minimum-sentence fixes. In his last act as a member of Parliament, former Liberal justice minister Irwin Cotler introduced a private members’ bill that would allow judges to impose a fair and appropriate sentence, notwithstanding mandatory minimums. Cotler’s bill was one paragraph long — but Wilson-Raybould seems content to drag her heels while the Department of Justice looks for a “politically viable” solution.

At some point, when the gulf between words and actions is so vast, legitimate questions can and should be asked about the bona fides of the intentions of the speaker.

And they were — the day after Wilson-Raybould’s uplifting but toothless speech, the Criminal Lawyers’ Association presented the 28th annual G. Arthur Martin Medal to unparalleled criminal and civil rights lawyer Frank Addario who called on the government to take action:

Yesterday, the Minister mentioned she is going to do something about mandatory minimums. Fine, we’re waiting for the legislation. A good place to start, though, would be to direct your federal prosecutors to stop defending the remaining mandatory minimums in the Code.

While you are at it, how about if we get going on solitary confinement? It’s a form of torture. Let’s see some governmental impatience there.

[…]

If the Justice Minister who was here yesterday was still here, I would invite her to put a defence counsel voice in a senior public policy position. Do it now if you want to stop jailing First Nations people at an unacceptable rate. Do it now if you want to reverse the unacceptable incidence of wrongful convictions.

The answer is not missing. The will to change the status quo is what’s missing.

Now that is a speech for which I would have given a standing ovation.


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