The Supreme Court of
Canada will hear arguments this spring on the appropriate punishment for a
number of petty offenders living on fixed incomes, including a 58-year-old man
with heart disease and a 56-year-old woman who is a legally blind, recovering
alcoholic with a bi-polar disorder.
Are the normal
sanctions imposed by the trial judge sufficient or should these individuals,
barely able to pay their monthly expenses, also be required to pay financial
penalties for their offences?
The court will
jointly hear appeals from rulings by the Quebec and Ontario appeal courts on
whether the imposition of mandatory victim fine surcharges for every criminal
offence are cruel and unusual punishment under the Charter. The provisions,
which require fines of $100 for every summary conviction offence and $200 per
indictable offence such as murder, attracted controversy immediately after they
were enacted five years ago.
court judges tried to find ways to avoid imposing the fines on indigent defendants
who usually had mental health or addiction issues and were unlikely ever to be
able to pay. “It is a cruelty in some measure to tell an offender that they
must discharge an impossible sentence before their debt is expunged,” wrote
then-Ontario provincial court Justice David Paciocco in his 2014 decision in R. v. Michael, where he found that the mandatory fines were a
breach of the Charter (Paciocco was elevated last year to the Court of Appeal).
The critics of these provisions included the newly elected Liberal
government of Justin Trudeau. In the fall of 2016, Justice Minister Jody
Wilson-Raybould introduced a bill to return discretion to trial judges on
whether to impose the fines.
That bill was never moved forward by the Liberals even as litigation over
whether it was constitutional moved forward in Ontario and Quebec. Both
provincial appeal courts concluded that the provisions did not violate the
Charter — unanimously in Ontario, but with a dissent in Quebec.
The Public Prosecution Service of Canada was an intervener in both
provincial appeal courts, supporting the argument that the existing legislation
was valid and complied with the Charter. Late last fall, after the Supreme
Court of Canada granted leave, the federal government suddenly withdrew as a
party and will not be participating in the hearing this spring.
organizations that assist disadvantaged individuals, the actions of the Liberal
government are puzzling. “It is not that easy to show that the surcharge is
unconstitutional. That is why it is so important for the legislation to come
in,” says Jonathan Rudin, program director of the Aboriginal Legal Services
clinic in Toronto, which is an intervener in the upcoming Supreme Court
hearing. “If you are unable to pay, it does nothing to support victims,” Rudin
according to data released by the Ontario Ministry of the Attorney General,
more than 90 per cent of its annual revenue from victim fine surcharges comes
from provincial offences, such as speeding tickets, not from those convicted
under the Criminal Code.
The night of
his election victory, Trudeau promised a change in the way his party would
govern. The sentiment was repeated in the mandate letters sent to cabinet
ministers a few weeks later in the fall of 2015, which were released to the
public. One of the most ambitious of these letters was the one directed to
not expect us to be perfect — they expect us to be honest, open, and sincere in
our efforts to serve the public interest. Our platform guides our government.
Over the course of our four-year mandate, I expect us to deliver on all of our
commitments,” the prime minister stated.
two-and-a-half years after the federal election, the Liberal government has
followed through on pledges to legalize the possession of small amounts of
cannabis and established the inquiry into Missing and Murdered Indigenous Women
and Girls — although its work has been plagued by delays and resignations of
In many other
areas, though, especially with respect to reforms to the judicial system and
increased transparency, the promised changes are moving along very slowly or,
if there is ongoing litigation, there exists a seeming disconnect between
public statements by politicians and what government lawyers argue in court.
changes such as restoring the Court Challenges Program have not yet been fully
implemented. In areas such as family law, reforms and modernization of relevant
statutes still appear to be on the backburner.
Given that the
Liberals have a majority government and are well over halfway through their
mandate, the apparent inaction is disappointing, says Michael Lacy, a Toronto
defence lawyer and president of the Criminal Lawyers’ Association of Ontario.
“The Liberals put forward a proactive agenda for criminal justice reform. But
there does not seem to be a lot of action,” says Lacy, partner at Brauti
Thorning Zibarras LLP in Toronto.
instead has been on discussions with interested parties and seeking feedback from
the public through consultations posted on government websites. “Consultation
is obviously laudable. But at some point, the government of the day has to make
decisions,” Lacy says.
One of the
areas where there has been significant consultation is whether to rescind
changes to the record suspension (pardon) process made by the former
Conservative government that increased fees and retroactively doubled the
period before an individual could apply.
meantime, the British Columbia Supreme Court ruled last year that the retroactive changes violated the Charter. In a similar challenge in Ontario
after the B.C. decision was issued, the federal government conceded the
invalidity of this part of the legislation.
federal government enacts a new law, though, the existing provisions apply
everywhere in the country except B.C. and Ontario. Lacy, who acted for one of
the individuals in the Ontario litigation, says ensuring the rules are the same
across the country should be a priority. “Why would you require applicants [in
other provinces] to go through the necessity of a Charter challenge?” he asks.
While there is
still a commitment to amend the rules around pardons, the federal government is
not indicating when these changes will be introduced.
that has been subject to Charter challenges and has arguably received a higher
public profile is the rules around solitary confinement in federal prisons.
Civil Liberties Association in Ontario and the B.C. Civil Liberties Association,
along with the John Howard Society, initiated proceedings challenging the
constitutionality of indefinite “administrative segregation” of inmates in
Minister Ralph Goodale introduced legislation last June that would impose an
initial cap of 21 days at a time for this type of confinement. The maximum
would be reduced to 15 days within 18 months after the measures became law.
That bill also did not advance beyond first reading after it was introduced.
Once the bill
was introduced, though, lawyers for the federal government unsuccessfully
argued that this was sufficient reason to adjourn the B.C. proceeding, which
was larger in scope and had more evidence that was going to be presented to the
court than the Ontario proceeding. In both cases, the existing rules for
placing inmates in solitary confinement for non-disciplinary reasons were
vigorously defended by the federal government.
One of the
arguments, rejected both by B.C. Supreme Court Justice Peter Leask and Ontario
Superior Court Justice Frank Marrocco, was that, when the Correctional Service
of Canada decided to put an inmate in administrative segregation, that did not
meet the legal test of “solitary confinement.”
stated that under the “Nelson Mandela rules” — the name for the United Nations
Standard Minimum Rules for the Treatment of Prisoners — the conditions for
these inmates in Canadian prisons was solitary confinement.
B.C. proceeding, an expert witness for the federal government suggested that
the maximum cap for segregation should be 60 days.
Latimer, co-counsel for the plaintiffs in the B.C. case, says the federal
government was sending a “conflicting message” in terms of its position on
solitary confinement. She notes that the mandate letter issued by Trudeau to
the Justice minister suggested it would implement the recommendations of the
Ashley Smith inquest. The jury in the inquest looking into the death of the
young woman in 2007 in an Ontario prison called for strict limits on solitary
“There was a
conflict between what was said publicly and how the legislation was being
defended in court,” notes Latimer, partner at Arvay Finlay LLP in Vancouver.
sections in the Corrections and Conditional Release Act were found to be
unconstitutional in both cases. The judges also suspended their declarations of
invalidity for 12 months to give the federal government time to amend the statute.
The CCLA has
filed an appeal of the Ontario ruling because it concluded that reviews of
decisions to keep inmates in solitary could still be considered independent if
conducted by an outside individual within the correctional service.
Leask, in his
ruling, disagreed with his Ontario counterpart and found that any reviews must
be done externally and also have enforcement power.
a spokesman for the Public Safety minister, says the Liberal government has been committed to reforms within the correctional
system. “We are reviewing all recent court judgments; we will identify any
further and better ideas that need to be incorporated in our reform package.
But we have been proactive from the beginning and our work is already well
advanced,” said Bardsley in a statement released on behalf of the minister.
introduced by the Liberal government to amend the regulations around solitary
confinement was a positive start, suggests Lisa Kerr, a criminal law professor
at Queen’s University in Kingston, Ont. and an authority on prison law. “For 30
years, no one has done a thing. No government has touched it,” says Kerr, who
also provided legal assistance to the BCCLA in the B.C. case.
At the same
time, the ruling by Leask makes it clear that, as the legislation stands now,
it is “not Charter compliant,” she explains. The external review provided for
in the proposed legislation is not binding on the warden of a federal
institution. As a result, there is only a “soft cap” on the maximum days permitted
in solitary, notes Kerr.
process is just one area where the proposed bill will have to be amended so
that the solitary confinement framework does not breach the Charter, the law
professor observes. She does not fault the Liberal government, though, for the
way it is tackling the issue. “Governments are complex things. You need the
bureaucracy as well to move things forward,” says Kerr.
officials have been very resistant to change and she says the Liberals are
taking the right steps to try to get them onside. “In the history of prison
reform, it is not helpful to come up with a new set of laws if you don’t take
the time to get institutional buy-in and try to ensure that the correctional
officers on the ground will respect the rules,” says Kerr.
One of the
central themes in reforms promised by the Liberal government has been to try to
address inequalities facing indigenous peoples, especially those within the
criminal justice system. One of the many areas where they were impacted by the
policies of the former Conservative government, says Rudin, was through its
increase in the number of offences with mandatory minimum sentences.
If an offence
includes a mandatory minimum, then a court has no right to impose a conditional
sentence. The Supreme Court of Canada has struck down some of these provisions
as unconstitutional, but the federal prosecution service continues to argue to
maintain the ones that remain.
Legal Services is an intervener in an ongoing challenge to mandatory minimums
for importing drugs. The Ontario Superior Court case involves a 21-year-old
indigenous woman and single mother, caught as a “drug mule” with cocaine in a
checked bag on a flight from Trinidad. The young woman had a troubled
upbringing including being sexually assaulted by two men when she was 13.
prosecutors in their written submissions agreed the woman had a difficult life
with a serious history of violence in her family and financial problems. But if
the mandatory minimum were struck down because of the circumstances of an
offender, it could lead to more drug importing. “Imposing very lenient
sentences on vulnerable female Aboriginal drug couriers may counterproductively
serve to increase their utility to drug importers,” they wrote.
mandatory minimums only means that trial judges have more discretion so that,
in rare instances, there may be a more lenient sentence if circumstances
warrant, notes Rudin, in response to the position taken by the federal Crown in
“This is not
the previous government. We know this government understands the issues and is
sympathetic. That makes it doubly frustrating,” he says.
declining to comment on any specific case, a spokesperson for the Department of
Justice stressed that the Public Prosecution Service of Canada is an
independent organization. “The relationship between the attorney general and
the director is premised on principles of respect for the independence of the
prosecution function and the need to consult on important matters of general
interest,” the spokesperson wrote in an email.
FAMILY LAW REFORM: F
The pledges included in the mandate letters
issued by Prime Minister Justin Trudeau included the expansion of the unified
family court system.
The first unified family court was initiated as a pilot
project in Hamilton in the late 1970s. There are now seven provinces with
unified family courts in a total of almost 40 municipalities.
Given the shared jurisdiction over family law, the
unified model is aimed at streamlining the process for couples who are
separating or in divorce proceedings. Last fall, the chief justice of the
Superior Court of Ontario called on the federal government to support the
expansion of the unified family court model in the province.
So far, though, there is very little movement on this
issue or other areas of concern to the family bar in the country, says Wayne
Barkauskas, partner at Wise Scheible Barkauskas in Calgary. “I don’t think
there is any political reason. It is just not on their list of priorities,”
says Barkauskas, a past chairman of the family law section of the Canadian Bar
“Unified family courts pop up their head every few
years,” he notes. While the concept is widely praised, there is likely going to
be a debate between the provinces and the federal government over who is going
to pay, he says.
A spokesperson for the federal Department of Justice
says it is “working with” provinces and territories to gauge the interest in
expanding the number of these courts. Any expansion, though, would require an
agreement on a “funding formula” and amendments to permit the appointment of
Modernizing the federal Divorce Act should also be a
priority, says Barkauskas, noting that there have been no substantial
amendments to the statute in more than 30 years.
The most significant and pressing issue in Alberta in
the family law field, however, is not the creation of new courts or statutory
reform but filling up the existing vacancies on the Court of Queen’s Bench.
The provincial government and even senior members of
the judiciary in Alberta have repeatedly called on the federal government to
move more quickly to fill vacancies. The website of the Office of the
Commissioner for Federal Judicial Affairs indicates that there were 12
vacancies in the province as of Jan. 1. “They say it is Alberta yelling again.
There is a reason we are yelling; the delays are egregious,” says Barkauskas.
A date for a seven-day trial, which is not unusual if
there are custody issues, is now being set for the spring of 2021. “People with
money are having disputes heard by arbitrators. This is two-tiered justice,” he
ACCESS TO INFORMATION: C
The federal government introduced long-awaited
changes to the Access to Information Act, which were passed by the House of
Commons last December.
The legislation, the responsibility of Treasury Board
president Scott Brison, was later than promised, but the Liberal cabinet
minister said at the time that it was a matter of getting it right.
However, the reaction from freedom of information
advocates has been less than positive.
At best, the impact of the amendments is “neutral,”
says Mary Francoli, a professor at the school of journalism and communications
at Carleton University, who focuses on open government issues.
“It is perplexing. There was so much rhetoric about
openness and transparency. This was a real opportunity,” Francoli suggests.
Instead, the legislation includes “additional grounds”
for federal agencies to decline access to information requests and does not
clarify what kind of total fees might be imposed beyond that of the initial
application charge, she says.
“No one thinks that everything in government should be
100-per-cent open. But there is so much information that is not made public,”
says Francoli. She adds that she does not believe the changes will result in
more access to government records or administrative institutions.
The right of government departments or agencies to seek
a review in Federal Court of an order by the Information Commissioner may
negatively impact its work. “Resources have always been an issue,” Francoli
Toby Mendel, a lawyer and president of the Centre for
Law and Democracy in Halifax, says the legislation (which was in the Senate at
press time) are not the “quick wins” the Liberal government promised. “This law
is woefully in need of improvement,” says Mendel.
His organization is involved in compiling a global
“right to information” rating for countries with respect to its legal framework
for access to information and a number of other factors. Canada ranks 49th out
of 111 countries in the survey, Mendel notes.
The exceptions to access in the legislation are
“massively overbroad,” says Mendel. “Every exception should have a public
The one area of faint praise is in comparison to the former Conservative
government. “The previous government was horrible on access to information. It
is better than the previous government,” Mendel says.
Mandatory victim fine surcharge: D
Justice Minister Jody Wilson-Raybould
introduced legislation in October 2016 to restore discretion to judges to waive
the mandatory victim fine surcharge of $100 per summary conviction offence and
$200 per indictable conviction. It has not progressed past first reading. The Supreme
Court of Canada will hear a joint appeal from Ontario and Quebec decisions on
whether the mandatory fines breach the Charter when imposed on individuals
without the financial means to pay.
The Liberal government passed
legislation to follow through on a campaign promise to legalize the possession
of small amounts of cannabis for recreational use. It is still not clear if
this will take place by the target date of July of this year.
Solitary confinement: C
Safety Minister Ralph Goodale tabled Bill C-56 in June 2017 to amend the
Corrections and Conditional Release Act with the aim of reducing how often
inmates in federal correctional facilities are held in solitary confinement.
The bill has not moved forward. Judges in Ontario and British Columbia have
since found aspects of the existing legislation to breach the Charter.
A review of higher fees and other measures that made it harder for
individuals to be granted record suspensions of prior criminal offences was
undertaken. In Ontario and Quebec, courts struck down Conservative amendments
that retroactively increased the time period before an individual could apply
for a record suspension. To date, no legislation has been introduced to amend
the existing provisions.
Court Challenges Program: B
November 2015 mandate letter to the Justice minister called for the resumption
of the Court Challenges Program, which would provide funding for disadvantaged
groups to bring forward equality and other constitutional challenges. The
Department of Canadian Heritage is responsible for the program. It has not
committed to a date as to when it will be up and running.
The federal government revamped
the appointment process for federally appointed judges, as well as the advisory
committees to assist in this task. According to the Office of the Commissioner
of Federal Judicial Affairs, as of Jan. 1, there are still 57 unfulfilled
vacancies for Superior Court or provincial Court of Appeal level positions
The Trudeau government promised
more diversity in the judiciary. Since it took office, 53 per cent of new
federal judicial appointments have been women. The percentage is much higher
than the previous government. There is also an increase in diversity of
background of those appointed to the bench.
Access to information:C
Bill C-58 was passed last fall
in the House of Commons after a lengthy review process. Access to information
advocates have said there is little in the way of substantive changes to make
federal government departments and agencies more transparent.
INDIGENOUS CHILDREN-FAMILY SERVICES
The Canadian Human Rights
Tribunal ruled in January 2016 that the more than 160,000 First Nations
children on reserves were discriminated against because the federal government
failed to provide anywhere near the same level of funding for child welfare services
that existed off-reserve.
The decision culminated a
nine-year-long legal battle that began when Cindy Blackstock, executive
director of the First Nations Child and Family Caring Society of Canada, filed
a complaint in 2007 against the federal government.
The proceeding and all
arguments before the tribunal took place while the Conservatives were in power.
The day the ruling came
out, a few months after the Liberals were elected, Indigenous and Northern
Affairs minister Carolyn Bennett and Justice Minister Jody Wilson-Raybould
issued a joint statement. “The Tribunal has made it clear that the system in
place today is failing. In a society as prosperous and as generous as Canada,
this is unacceptable. This Government agrees that we can and must do better,”
The federal government did
not appeal the ruling. However, the legal disputes continue over the
implementation of what the tribunal originally ordered more than two years ago.
“When the ruling came out,
it was one of the best days of my life,” says Anne Levesque, an Ottawa-based
lawyer for the Caring Society. “We thought there was going to be real change.”
Since its initial decision,
the tribunal has issued three non-compliance orders against the federal government. Primarily, the disputes
involve the scope of the definition of Jordan’s Principle, which is that when
there is a government service available to all other children, the government
of “first contact” should pay for this service for a First Nations child and
seek reimbursement later if there is a dispute over jurisdiction.
In a September 2016 ruling, the human rights
panel noted that it had already issued an order for the federal government to
move more quickly to address the funding inequality. “Deferring immediate
action in favour of consultation and reform at a later date will perpetuate the
discrimination the First Nations Child Family Services program has fostered for
the past 15 years,” the panel wrote.
Last spring, the tribunal
issued a decision that faulted the federal government for trying to limit the
scope of the panel’s original ruling, such as applying it only to children with
multiple disabilities. “Despite the findings in the Decision [January
2016], Canada has repeated its conduct and narrow focus with respect to
Jordan’s Principle,” it wrote.
This time, the panel issued
a number of orders on how to assess and pay for services for First Nations
children. The government filed a judicial review of this decision, although a
settlement was eventually reached among all parties, says Levesque. However,
there is still an ongoing dispute over whether the federal government’s
long-term financial commitment complies with the tribunal’s original decision.
“Rather than taking action, it still says it needs to consult. This is a
stalling tactic,” says Levesque. “Discrimination is not a valid policy choice.”
For its part, Indigenous
and Northern Affairs Canada says the government has worked diligently to
implement the tribunal’s orders. “Since 2016, more than 99% of the requests received
under Jordan’s Principle have been approved, totalling over 33,000 requests for
services and supports. This includes mental health supports, medical equipment,
speech therapy, educational supports and more,” says Stephanie Palma, a
spokeswoman for the department.