The benefit of fixed election dates is that we probably know when the next federal election will take place. So, you can mark your calendars — but do it in pencil just in case — Canada will be voting on Oct. 21, 2019.
With the federal election only a year away and given the glacial pace of the government’s promised justice reform, there’s not much time for any new criminal justice bills. And given the partisan politics that have become hard-baked into criminal justice proposals, the Liberals will certainly not want to provide fodder for the inevitable Conservative “soft-on-crime” attack ads.
What we have here is all the justice legislation we’re going to get.
So, now is as good a time as any to see if the Liberals have lived up to their lofty justice promises. And, boy, did the Liberals come to power in 2015 on the back of some very big promises.
The instructions provided by the prime minister to Minister of Justice and Attorney General of Canada Jody Wilson-Raybould were ambitious. She was instructed, among other things, to modernize the justice system, increase the use of restorative justice, increase the government’s Charter compliance and address gaps in the justice system that allow the most marginalized Canadians to fall through the cracks. The Liberals also promised to embrace evidence-based policy-making, to restore judicial discretion, to legalize cannabis and to eschew omnibus legislation.
Unfortunately, by any measure, the Liberal government has not only failed to live up to its promises but has moved progressive justice policy backwards.
But let’s start with one almost positive. When it comes to the legalization of marijuana, it seems that the Liberals kept their promise — sort of. They pledged to legalize marijuana because it “traps too many Canadians in the criminal justice system.” So, in 2015, the Liberals promised to “remove marijuana consumption and incidental possession from the Criminal Code.”
But the Liberal’s cannabis legislation doesn’t do any of those things very well. Sure, the new legislation does legalize some marijuana — some of the time, under some circumstances — but it does not “remove marijuana consumption and possession from the Criminal Code.”
Unfortunately, in addition to leaving marijuana criminal in too many circumstances, the cannabis legislation also discriminates against the young and the poor and is checkered with unconstitutional provisions. Amendments to correct these issues were proposed when the bill was studied, but the Liberal-controlled committee rejected every opposition amendment — evidence-based policy be dammed.
But the list of promises, even half-kept ones, basically ends there.
Sadly, even in the face of an explicit promise, the government has taken no action to address the problem of minimum sentences. Even though almost all the evidence suggests that minimum sentencing is a counterproductive measure that contributes to inequality and court delays — while offering no increase in community safety — the government has done nothing.
Wilson-Raybould did introduce a bill to restore some discretion to judges to determine the appropriate victim fine surcharges, but that bill languished on the order paper and was abandoned only to be sent back to square one and incorporated into the self-described “bold” criminal justice reform bill C-75.
But bill C-75 does little to satisfy the Liberals’ lofty justice rhetoric. This flagship and highly criticized piece of legislation reacted to high-profile court cases by eliminating the preliminary inquiry and radically changing jury selection. When combined with legislation that would compel an accused to make reverse disclosure to the Crown in sexual assault cases, Wilson-Raybould’s “bold” justice reform has been described by the criminal defence bar as “utter and complete betrayal,” an erosion of procedural safeguards and “worse than anything [former prime minister Stephen] Harper ever did.”
What is missing from the government’s criminal justice track record are any meaningful measures to transform how we deal with crime driven by addiction, poverty or mental health. Missing is any recognition that systemic racism is a problem. Missing is anything remotely resembling the promised reforms.
Ultimately, the government cannot be criticized for a lack of vision — just look at all its promises. But the Liberals’ first term in power has shown that they are willing to sacrifice that vision. Perhaps they don’t have the stomach for necessary reforms, perhaps they were full of hot air when they made the promises or maybe they just don’t really care about community safety, constitutional values and fairness.
History will show the last four years as a missed opportunity. And a government that swept to power with the support of many in the criminal defence bar may learn the lesson that there is no greater fraud than a promise not kept.
Michael Spratt is a partner at the Ottawa criminal law firm of Abergel Goldstein & Partners.