Michael Spratt argues that despite promises to be better than Conservatives, the Liberal record comes up short
In 2015, Justin Trudeau and the Liberal party rode an electoral red-wave to power. Their promise was a simple one: be better than the Conservatives.
It should have been so easy, especially when it came to the criminal justice file. The Conservative government’s justice policy was defined by mandatory minimum sentences, disdain for expert opinion, the use of omnibus legislation and reactionary laws designed to respond to isolated, but high-profile, cases.
The Liberals said they were going to be different. They said they would base their justice policy on facts, not make up facts to suit a preferred policy. They said they would repeal ineffective and harmful mandatory minimum sentences. They said they would strengthen parliamentary committees so they could better scrutinize legislation. And they said they would overhaul the justice system to ensure it achieves fair and just results.
But in the end, after four years of sunny ways, the Liberal record on justice policy has not been much better than Harper’s.
Sure, there have been some modest successes. Cannabis was partially legalized, some outdated and zombie laws were repealed and some small gains were made in correctional programming.
Overall, however, the Liberals receive a failing grade on the justice file.
Inaction on minimum sentences
The biggest Liberal failure is what they did not do – eliminate mandatory minimum sentencing. This one should have been easy.
In 2015, Trudeau told The West Block’s Tom Clark, “Where we have concerns is in the overuse and quite frankly abuse of mandatory minimums”
He was right to be concerned. 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, disproportionally impact racialized and marginalized groups and result in wrongful convictions. Minimum sentences represent a myopic criminal justice policy born of a failed tough-on-crime ideology.
Yet, the Trudeau government took no action.
And that lack of action on minimum sentence broke a second promise.
In 2015, Justin Trudeau, while fighting back tears, promised to fully implement the Truth and Reconciliation Commission's 94 calls to action. The 32nd of which was simple: allow judges to depart from mandatory minimum sentencing.
Promises made, promises broken.
Legislation grabbed from the headlines
Bad facts make bad laws, as does legislation based on high-profile cases. This was a hallmark of the Harper government. It turns out the Liberals could not resist the temptation either.
In 2018, Gerald Stanley was acquitted of murder for his role in the tragic death of Colten Boushie, a young, Indigenous man from Saskatchewan. After the acquittal, Boushie’s family made allegations that Stanley’s defence used peremptory challenges to exclude any Indigenous-looking juror.
“The deck is stacked against us ... Where is the First Nation’s say in this? We don't have a voice," Boushie's uncle, Alvin Baptiste told the CBC.
Federal Minister of Justice and Attorney General (as she then was) Jody Wilson-Raybould, was quick to say that she shared the families concerns but cautioned that any changes to the jury selection process would require “careful study and consideration.”
And then, less than a month later, Wilson-Raybould introduced Bill C-75 which overhauled the jury selection process.
The same was true for Bill C-51 which mandated unprecedented reverse disclosure obligations on a defendant in sexual assault cases. Why? Two Words Jian Ghomeshi.
We were promised more thought, but instead we got more of the same reactionary law-making.
Fewer clapping seals and strengthened parliamentary committees
Legislation is never perfect. But it could be if the government actually listened to expert evidence and was open to amendments. But listening can be hard, especially when objectivity is clouded by arrogance.
Arrogance and closed-minded law-making was on full display when the Liberal’s long-awaited, signature justice reform bill C-75 fell flat at committee. Despite hearing from 95 expert witnesses the committee studying bill C-75 did not recommend very many changes. Even when there was a concurrence of opinion from the witnesses on major deficiencies. The Liberals, you see, voted as a block to keep the legislation mostly as originally proposed. It is almost like they made up their mind before the whole process started.
The same was true for the Liberal legislation on impaired driving, marijuana and assisted dying. It turns out that it is easier to pay lip service to evidence-based policy than to actually embrace it.
The Liberals said they would be different than Harper when it came to omnibus bills – in fact it was an explicit election promise: “Stephen Harper has also used omnibus bills to prevent Parliament from properly reviewing and debating his proposals […] We will not resort to legislative tricks to avoid scrutiny.”
And then as Prime Minister, Justin Trudeau stood in the House of Commons and railed against the previous government’s use of omnibus legislation as a way of avoiding debate. Trudeau complained that the Harper Conservatives would “put everything into a piece of legislation, whether it had links to it or not.”
So, it was a surprise that, seemingly at the behest of corporate-bad-actor SNC-Lavalin. a Criminal Code amendment was buried in a budget implementation bill.
The new remediation agreement provision, that SNC so badly wanted, was so well-hidden that even Liberal MPs sitting on the House of Commons Finance Committee, who studied the bill, were caught by surprise.
It seems it is easy to criticize omnibus legislation until you want to sneak something into law.
There are more examples of the government’s failure on justice policy. Like the time Public Safety Minister Ralph Goodale called Conservative changes to the pardon system cruel and punitive. And then did nothing to reverse them. Or that time when the PMO attempted to interfere with attorney general and prosecutorial independence in the SNC-Lavalin affair.
In the end, it turns out that the Liberals, despite their promises, were not that much different from the Conservatives.
Sure, Harper loved minimum sentences. But, unlike the Liberals, the previous government did not attempt to roll back important justice safeguards. Trudeau limited preliminary hearings, mandated defence disclosure and attempted to allow police evidence to be introduce at trial without cross-examination.
This is why the Liberal government’s justice legislation was met with loud and visceral condemnation by criminal defence lawyers who characterized it as an “utter and complete betrayal,” an erosion of procedural safeguards that “gravely misses the mark,” a “regressive blindside” and “worse than anything Harper ever did.”
Because it turns out that despite lofty promises and idealistic words the new guys ended up looking pretty much like the old guys.
And that is why they failed.