The lawyer who cried wolf

The lawyer who cried wolf
I don’t wish to be the criminal lawyer who cried wolf. But, I am going to, because I believe we have some good reasons to be worried about our future. I believe that we are currently drowning in the political climate of fear and loathing. I believe that we are leaning towards the old school, Old Testament, retribution agendas. I believe we are slowly going to lose some of our rights guaranteed to us in our Charter of Rights and Freedoms.
As we now all know, Prime Minister Stephen Harper and the Conservative party finally have a majority government. In my view, Harper engaged in the folksy “us and them” binary analysis for the cameras and met his ultimate political objectives. For the next four years, Harper and the Conservatives are going to decide what is best for our country with respect to law and order.

The prime minister has repeatedly stated publicly that he does not want the judiciary to be making policy decisions. In short, he wants judges to simply follow the law and not engage in wielding their discretionary powers. Any criminal lawyer will tell you that behind the scenes, the entire criminal justice system is geared towards resolving the matter via a guilty plea. By entering into a plea arrangement, both the Crown and the accused typically benefit from resolving the matter and avoiding the risks and related costs that attach to a proper trial.

Everyone who works within the system is all too aware that if every person charged with a criminal offence chose to embrace his or her constitutional right to go to trial, the entire system would collapse. The Truth in Sentencing Act (Bill C-25) enacted by the Conservative government in October 2009 did away with the notion that an accused person would typically receive two days’ credit for each day spent in jail from the presiding judge.

In practice, this well-established rule of thumb would tend to “sweeten” the deal for most accused individuals and more often than not, they would be persuaded to plead guilty. Under the new regime, where the accused are getting 1:1 instead of 2:1 enhanced credit, most of my in-custody clients are choosing not to plead guilty and are instead insisting on setting trial dates. My colleagues are experiencing a similar pattern with their own in-custody clients. The full impact of Bill C-25 is yet to be determined. I for one can see the dark clouds gathering. Get your umbrellas ready!

Crime rates in Canada are as low as they have ever been, and yet there is a great deal of daily talk about “punishing the criminals” with mandatory sentences. What amazes me is that most Canadians are still in denial about the cold, hard fact that minimum mandatory sentences simply don’t work and don’t actually reduce crime. This has been shown over and over in the United States.

Keeping the blindfolds firmly intact, as promised, the Conservative government is about to pass the all-encompassing, omnibus crime bill. This legislation is going to bring the most aggressive right-wing policy shift in the history of the Canadian justice system. The omnibus bill will introduce mandatory sentences for certain drug and sexual assault offences along with reintroducing some controversial aspects of anti-terrorism legislation. As an added bonus, the legislation will seek to curtail the right to bail when one is charged with serious offences, along with abrogating privacy rights for young persons who have been charged with a crime.

Jack Layton, now heading the official opposition, also seems to have bought into the urban fears and related police fantasies of gun-toting street gangs with scary tattoos crashing our Sunday church brunches and demanding our bland potato salad. Mimicking the Conservative government siren song, Layton also promised more police officers to fight crime. During the debates, Layton actually accused Harper of not following through on his promise to deliver more officers to patrol the streets.

It would appear that anyone questioning these American-style policy shifts would most certainly be labelled as being “soft on crime.” I can just see into the future where a libertarian, a person who takes a reasoned approach to crime and punishment and does not want an armed police officer in his bedroom, will be asked, “Are you now, or have you ever been in the past, soft on crime?”

Another long-term implication of Harper’s recent win is the future of the Supreme Court of Canada. With Supreme Court justices Ian Binnie and Louise Charron stepping down very soon, Harper will have direct input in appointing individuals who will carry his vision of law and order into the country’s top court. Rest assured that the people who will be appointed will likely not be obvious card-carrying Conservatives. The change at the top court will be more subtle. It is my fear that the decisions regarding alleged Charter violations from these individuals will likely tend to favour the police and the prosecution for decades to come. The Harper appointees will likely echo the law-and-order, tough-on-crime aria that has so infatuated Canadians at the voting booths of late.

The direct infusion of Harper’s political influence and ideology into the gatekeepers of justice may not only stop at the Supreme Court of Canada level. Eighteen out of 24 justices at the Ontario Court of Appeal are scheduled to retire or semi-retire in the next four years. The appointments of the new judges for Ontario’s top court are not going to take place in a vacuum. It is a fact of life that if one has aspirations of appointment to a superior or appeal court, one has to have the support of the ruling federal party. Yes, just like anything else, there are exceptions to this rule, but the reality is that you are not going to get “the call” from the federal Justice minister unless you play by these well-established, unwritten rules.

The Hollywood-driven myth of “opposites attract” clearly does not operate in reality when it comes to being appointed to the bench. I fear that the oath of political allegiance that the new justices will carry to the Court of Appeal will also have a detrimental and chilling effect on our democratic values.

There you have it. I have cried wolf! I know the majority of the Canadian public will not care for my warning. They have already spoken with their votes. I truly believe that as a society we still have to learn to differentiate between our primitive desire to punish the criminals and separate that from getting to the root causes of crime. The objective of punishing criminals is simple to rally behind. Our political champions have honed their oratory skills over centuries working on the same law-and-order, get-tough-on-crime themes. Their songs are predictable, with rousing uplifting choruses, and we can all take out our lighters and sing along. The danger, of course, is that we tend to forget what is truly happening outside the stadium, and the separation between “us and them” will only continue to grow.

Now, please feel free to offer the polite tattooed gentleman your bland potato salad!

J.S. Vijaya is a criminal defence lawyer in Toronto. He can be reached at

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