Criminal Justice and the Canadian Election


Only a few days until election day we spent a lot of time talking Justice issues during the 44th general election in Canada – and not much time to really talk about it.

In a lively and controversial campaign, leaders have revealed plans to reform the criminal justice system if elected. You will be forgiven if you don’t hear from them as they were seldom the focus of the race.

“Justice has always been a wedge between left and right,” says Tony Paisana, partner at Peck and Company. “[But] less this year than ever before. “

Justin Trudeau’s Liberal Party has promised predictable policies that stick to six years of humble reform.

If re-elected, his government would invest more money in legal support for racialized communities, strengthening the prohibition of hate speech and expanding access to pardons. The Liberals are also expected to bring back their much-lauded C-22 Bill, which would abolish a number of mandatory minimums and expand access to conditional penalties. These measures have been billed as a way to counter a criminal regime that has focused on punishment through incarceration, which disproportionately affects indigenous peoples, blacks and marginalized Canadians.

Even the liberals promise Reconstitute the Law Commission of Canada, an independent advisory body tasked with recommending reforms to a number of laws and regulations – until it was deleted in 2006.

“That’s probably the most promising reform on all of those lists,” says Paisana.

The Liberals’ competitors, on the other hand, have taken a less traditional approach. Erin O’Toole’s Conservative Party is moving away from tough action against crime, which has become a mainstay of its party’s criminal approach.

The Conservatives would create a special list of “criminal gangs” much like Canada lists terrorist organizations, which would make it easier for Crown lawyers to prosecute organized crime cases. It also promised to more aggressively condemn human trafficking cases.

The fact that no one promises new binding minimum amounts is a relief for defense lawyers everywhere. As Paisana notes, there are already “innumerable Charter Requests “with which the existing mandatory minimum requirements are to be reduced.

At the same time, Paisana said, further efforts to reinforce the criminal ban on guns and gangs are likely to have diminishing results. “How many different ways can we criminalize and re-articulate gun violence?” He said CBA National. “At some point, as in many other areas of society, we have to come to the realization that the criminal code has its limits in terms of its ability to solve problems. “

To round off the package, the NDP and the Greens are each proposing a rather radical overhaul of the judicial system: the NDP is proposing to abolish most of the mandatory minimum requirements and develop a plan to combat over-representation of blacks and indigenous peoples in prisons. The Greens would pull some money out of the RCMP and point it to programs that have been shown to reduce crime while taking a more mental health-focused approach to the justice system. Both parties would decriminalize possession of currently illegal drugs.

Unfortunately, says Paisana, the idea of ​​decriminalization was no longer accepted. “The time has come to seriously examine this proposal and what it means,” he says. “I think it is now out of discussion that our current Criminal Code response to the opioid crisis – ie deterrence, criminalization and punishment – is not working and actually likely to make the problem worse.

All of these questions have been litigated and re-litigated on a large scale in recent years. But paisana is picking up on a new trend emerging from these platforms. “What I found interesting – this is being talked about in different ways by all four different parties – is the concept of records in the criminal justice system,” he says.

The NDP would ban the police card and restrict the information police officers can put into their databases about individuals. Liberals would widen access to pardons. In the meantime, the Conservatives would make it easier for the police to disclose a person’s criminal past related to domestic violence.

As police databases become more robust, this issue will play a growing role in the political arena, says Paisana. How much information can the police save? More importantly, when should you be allowed to use it?

Paisana notes that civil liberties organizations and the Canadian Bar Association raised these issues. “In particular, the distribution of records without conviction is an issue that I have worked on personally for a number of years and that is of great concern to Canadians,” he says. “I think because that in turn affects your daily life.”

It is increasingly common for police background checks, which are required for many jobs, to turn up information “even though they have never been convicted of anything,” he says.

Paisana says it is time for the parties to begin putting in place guard rails on when and how police can obtain, hold, and disclose this type of information.

Overall, however, Paisana points to a growing consensus among all parties. Conservatives no longer believe in the idea that increasing prison terms will reduce crime. After years of promises, the liberals pushed ahead with the dismantling of the criminal regime. The NDP and the Greens are leading the charge of further reductions in criminal law.

In the end, the criminal justice system may not have shed light on the election campaign. But it turned out to be a sleeper problem.

Justin Ling is a regular contributor based in Ottawa.


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