Column

Crime & Punishment in 2012

It’s that time of year again. Judges and lawyers have returned to court sporting freshly bronzed bodies, and Ontario’s RIDE program has tucked away the bulk of its breathalysers until the summer cottage season. A perfect time to transition from reflections of the past to contemplation of the future. And so I bring you my second annual Crime & Punishment Predictions. (If you’re wondering how plausible a prognosticator this Prutschi fellow is, you may peruse my previous perennial predictions here: http://www.slaw.ca/2011/02/07/crime-punishment-in-2011/). 

5. A Return to the 11(b) Crisis

For nearly a decade appellate courts have been discreetly warning their trial-level cousins that the guidelines for tolerable trial delay at both the Provincial and Superior Courts are supposed to be inching downwards. The rationale is obvious: since the crisis of long-delayed trials first identified way back in Askov, many years have passed but the expectation of a steadily declining backlog has failed to materialize. Ontario is stumbling along with its ‘Justice on Target’ plan that has seen improvements in some jurisdictions offset by missteps in others. Dramatic changes to the Criminal Code discussed below will also pile on more trials to a system already heaving on the verge of collapse. I expect to see substantial litigation surrounding trial delay in 2012.

4. Reefer Madness

A majority of the Canadian public remains blissfully convinced that Canada is soft on minor marijuana charges. With current and former Vancouver mayors arguing very publically for legalization, you can’t blame Joe Public for thinking cops don’t care much about weed, but you may be in for an unpleasant New Year’s surprise. In addition to draconian new sentencing provisions tucked into the Omnibus crime bill for small grow-ops, in Ontario I have noticed a very significant uptick in the number of individuals being charged for simple possession of tiny amounts of pot. While these charges are still being almost universally diverted at an early stage, previously the unstated policy on the part of police officers seemed to be to simply seize the goods from those caught with a couple of joints. Now, for reasons unclear to me, charges are in fact being laid.

3. White Collars and Prison Jumpsuits

Whatever you may think of the “occupy” movement you can’t deny that the so-called “99%” are eager to beat down the mansion doors of the so-called “1%”. The poster-children for all the evil that embodies the one-percenters are white-collar fraudsters. Our southern neighbours have long bemoaned Canada’s comparatively soft sentences in this area and the omnibus crime bill squarely takes aim at correcting that perception. A spate of new aggravating factors to be considered on sentencing relate directly to fraud cases and a two-year mandatory minimum jail sentence will be imposed on anyone convicted of a fraud involving $1,000,000 or more. A number of police task forces and crown attorney units have recently been formed specifically to tackle commercial frauds and they will be looking to make good on their mandates in 2012.

2. Constitutional Challenges to the Tory Crime Agenda

Love it or hate it, get-tough-on-crime is back in vogue. More than any other development in 2012, the sweeping changes enacted by the omnibus crime bill will undoubtedly be repeatedly targeted by defence lawyers all across Canada. Mandatory minimum sentencing provisions for certain drug offences look especially ripe for a constitutional challenge, particularly when they are applied to the mentally ill, those with drug addictions, or aboriginal offenders. I expect we will see a burst of inconsistent lower court judgments early in the new year followed by some significant appellate decisions in the spring. A date with the Supreme Court in Ottawa seems certain eventually but that’s a road that may take us into 2013.

1. Bankrupting the Justice System

Guess what eliminating 2-for-1 pre-trial credit, increased mandatory minimum jail sentences, and tougher parole laws add up to? 2012 will be the first full year we see the real price of ‘getting-tough-on-crime’ and be prepared for some serious sticker shock. The substantial shifts enacted by the government go beyond the cost of building a few more jails. In addition to all the extra time offenders will spend in prison, an unintended consequence of these provisions is to substantially disincentivize early guilty pleas. An accused who was previously eligible for a lenient sentence or who had racked up considerable pre-sentence custody could throw in the towel and make peace with Her Majesty but is now encouraged to take a shot at trial even where he assesses his own chances of winning the case as poor – if you’re getting slammed by a mandatory minimum whether you plead guilty or not, you may as well spin the wheel of justice and see what happens. Already strained budgets for police, legal aid, crowns, corrections, probation and parole will feel the sting. The feds have seated everyone at a very expensive dinner table but they appear to have ducked out the side door having only covered a third of the cheque. Provinces and municipalities will be left washing dishes in the kitchen to pay off the rest of this tab.

 

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Comments

  1. This is what Johnny Canuck voted for, this is what Johnny Canuck will get. Johnny Canuck also gets to pick up the tab.

    That’s the way it is supposed to get done in a democracy (no matter how rarely this actually turns out to be the case). Johnny Canuck calls the shots no matter how poorly thought out it is.

  2. David Collier-Brown

    Somehow, bankrupting the justice system sounds like unwise to me…

    It’s not just bad public policy, IMHO, but starving something necessary of funds tends to produce bad outcomes, such as making the police distrustful of the courts, and thus to further request to “get tough on crime”. That in turn has lead to things like more mandatory minimums, moving funding from legal aid (and the defense) to crown attorneys, concentrating prosecutorial funding on hard-to-defend cases like possession of marijauna, and more use of reverse onus to make it easier to convict.

    This kind of positive feedback just makes the problem progressively worse. Which is find if you don’t actually want the necessary service to survive, but less than useful otherwise.

    What, then, can a layman do to help prevent this proposed change?

    –dave (a philosopher, not a lawyer) c-b

  3. legally? – start organizing enough people in in every riding occupied by an elected (not-Progressive) Conservative that the member realizes that he or she won’t have the job they’re currently using to “shnor” so that they’ll have to go back to whatever it was they weren’t qualifed to do before. (With out the perqs).

    legally? – pressure each and every “Conservative” senate appointment by letters, petitions, etc., delegations. It’s at least plausible that some some will put reality before ideology.

    otherwise? – if you have the right contacts so that you can believably mention the 10 Plagues, you might even get the current (not-Progressive) Conservative leadership to listen to you. You certainly would get the attention of their core constituencies. (It will help if you can double for Charlton Heston).

  4. to be fair to “Johnny Canuck”, that’s not quite accurate. It’s the monster that too many of the “Johnny Canucks” who bothered to vote created and the consequence of the first past the post system where there’s a too small turn-out. The so-called not-Progressive Conservative mandate is based on about 24% of the eligible to vote Canadian public. The 2011 voter turn out was about 61%. The not-Progressive Conservatives got about 40%.

  5. It is all very well to say that the provinces are bound to administer the justice system regardless of what the federal Parliament and Government throw at them but, I suggest that there may be some limits. What happens if the Provincial Government does not present the necessary financial legislation to the Legislature to cover the various increased expenditures?

    The Government only has available to it the moneys voted by the Legislature and the Legislature can only vote the funds requested by the Government (ss 54 and 90, Constitution Act,1867). If, then, the McGuinty Government in Ontario, or others across the country presented to their legislatures Estimates and appropriation bills with respect to correctional services and the parts of justice that are expected to take on greater work under C-10, granting the same amount of money next year as this year? Arguably, if some or all of the provinces want to cut expenditures either across the board or otherwise they even reduce the monies available for the various increased expenses arising out of C-10.

    I would certainly welcome responses to this question either via SLAW or by direct email.

    Michael (Mickey) Posluns.

  6. There will be a Charter breach law suit of some sort, I suppose, by aggrieved felons. The judges are obliged to apply the law as it becomes under C-10 unless it’s declared unconstitutional. So let’s assume that, because the province has chosen to not build new jails, so many felons are sent to a jail that the conditions some how can be said to amount to a breach of some Charter right. I’ll leave it to others to list the rights. Couldn’t a judge declare the remedy for that breach is to some suspend the sentence (or even cancel it where appropriate?)

    The province would plead that it could not afford to divert funds and it made a valid policy decision etc. I can’t see a judge wading into that one. Does that leave the Fed level exposed to a damages claim if somebody is “injured” due because the prisons are unsafe due to inadequate funding? Can the fed level claim that it had no obligation to give additional money? Lots of fun for the brighter types that inhabit our world (g)

    Anybody know a newspaper that’s prepared to spend the money and time to see if a Freedom of Information application will produce whatever internal studies the feds did on the issue of the consequences of under-funding?

    I’m assuming the political masters in the Regressive Conservative party thought about the problem enough to perhaps worry just a bit. I could be wrong, of course. I could be assuming too much.

    DC

  7. David Collier-Brown

    I am a random Johnny, and I don’t think I voted to desroy the courts (;-))

    Let’s try “modeling” Johnny’s logic:

    I, Johnny Canuk, expect a good, workmanlike job from any professional, whether they work directly for me or whether they represent me in a legislature.

    If they put their foot in it, and they do, I forgive honest errors, assuming stupidity rather than malice.

    If they make too many errors that I see, then they’re at risk
    - if they happen to be in charge when the sky falls, I vote for someone else
    - if they make a really huge number of errors, I vote for someone else

    Otherwise I give them a number of terms before I decide they’re getting stale and vote for someone else

    –dave (recursively introspective) c-b

  8. One possible area of judicial push-back is the very live issue of overcrowding. The Conservatives — and indeed a clear majority of Canadians — have been vocally upset at the old status quo in which offenders were given 2:1 credit for time spent in pre-trial custody. (There are a host of good reasons from jail coniditions to parole calculations to explain this long-held approach but those are for another column)

    A well-developed series of cases have dealt with the issue of jail over-crowding by the imposition of 3:1 or even 4:1 credit as a remedy for the horrors of being held in a dangerously over-crowded jail. New laws already on the books limit the maximum pre-trial custodial credit to 1.5:1 but what happens when Bill C-10 swells the ranks of those in custody as I anticipate it will?

    If we return to the bad old days of 4 to a cell (two in bunks, one on the floor, and one literally draped beside the toilet…you should read some of the evidence from jails like Toronto’s “Don” and shudder), what’s a Judge to do with that? Contravene the 1.5:1 law and order 4:1 credit? Refuse to send someone to jail at all and order a non-custodial sentnece even if they feel it is warranted or if the law requires some new mandatory minimum? Order the Province to rectify an over-corwding situation that is, at least partially, not of their own making?

    These are the types of conflicts I believe we may be headed towards.

  9. Who said anything about “destroying the courts”? The simple fact is that Johnny Canuck will have to pay for the crime bill the government they elected (by commission or ommission as the case may be) passed. If that crime bill is paid by cuts to other governement services or departments, tax hikes, debt financing or what have you it matters not. Johnny Canuck will be paying the bill.

    The real pickle arises when Johnny Canuck says to one level of government “Be tough on crime!” and then says to another level of government “Don’t pay for the Crown attorneys, courts, prisons or cops necessary to be tough on crime.” That might be a problem. But it is still a problem that resides in and arises from Johnny Canuck. Eventually Johnny (and Jane) Canuck will realize their schizophrenia and govern themselves accordingly.

  10. What is missing from this list of 2012-13 C&P Predictions?

    The opportunity for the legal profession to take responsibility to “heal itself” and begin to address the national legal aid funding problems with their own systems of funding to ensure that those needing access to justice receive it.

    Yes, all Canadians will pay the bill and no amount of blaming, criticism or whining will change that simple fact….the challenge for all Canadians, especially the legal profession, is to begin to solve the problems.

    Yours truly,
    “Jane Canuck”