UnwiseUnjustUnconstitutional via the Canadian Civil Liberties Association
On September 20, Justice Minister Rob Nicholson tabled Bill C-10, an omnibus bill titled the Safe Streets and Communities Act. Combining amendments from nine separate bills that had failed to pass in previous sessions of parliament, Bill C-10 would make fundamental changes to almost every component of Canada’s criminal justice system. It proposes:
- New criminal offences
- New and increased mandatory minimum sentences
- The selective elimination of conditional sentences
- Increased pretrial detention and new, harsher sentencing principles for young offenders
- Longer waiting times before individuals can apply for pardons
- Increased barriers for Canadians detained abroad who wish to serve the remainder of their sentence at home
- The Bill also introduces some changes outside the criminal justice system:
- Amendments to the Immigration and Refugee Protection Act would grant the Minister of Immigration broad discretion to deny work permits to any foreign national who is ‘at risk of abuse’
- Amendments to various pieces of legislation to allow victims of terrorism to sue certain foreign entities and governments for damages
What are the problems with Bill C-10?
In the CCLA’s view, the Bill proposes a few welcome changes, including requiring the Parole Board of Canada to provide annual statistics relating to record suspensions (which replace pardons for some offences) and empowering victims of terrorism to seek redress for loss and damage resulting from a terrorist act.
Overall, however, the direction these changes set out for the Canadian criminal justice system – jail more often, for longer, with more lasting consequences – is a dangerous route that is unsupported by the social science evidence and has already failed in other countries. Indeed, the research suggests that putting an individual in jail for longer will actually increase the likelihood of re-offending. It’s hard to see how this Bill will make streets and communities safer. What it will do is needlessly increase the number of people in prison, skyrocketing costs and imposing unjust, unwise and unconstitutional punishments. This is exactly the kind of policy Canada doesn’t need.
Below are six broad points where CCLA is most concerned about the impact of this Bill.
1. Broad and vague amendments to the Immigration and Refugee Protection Act:Amendments give a very broad mandate to deny any foreign national a work permit and do not specify what factors would be used to target an individual as ‘at risk’ of being exploited. It is also poor public policy to punish foreign individuals who are vulnerable to abuse as opposed to addressing the Canadian employers who exploit these populations.
2. Hollow expansion for the rights of victims: Both torture and terrorism are serious crimes of international concern. Numerous Canadian victims of torture have been unable to access meaningful justice in Canadian courts– and yet the government has chosen only to make these amendments available to victims of terrorism. Even victims of terrorism would have to have their cases ‘pre-approved’ by the government, which has the ability to decide which governments can and cannot be sued. Canada should not play politics with victims of torture and terrorism.
3. Unconstitutional use of mandatory minimums: The use of mandatory minimums for broad and vague underlying offences may result in the imposition of unjust, grossly disproportionate sentences. The drug provisions include low-level drug offences – producing as little as six marihuana plants – and extremely broad aggravating factors which would target all those who rent or live in a house they do not own.
The child pornography provisions criminalize, and would impose mandatory minimum jail sentences, for the consensual, legal sexual activities of youth and young adults. There is little evidence that mandatory minimums provide any deterrent impact, enhance community safety or lower crime rates. There is also little evidence to suggest that they will significantly impact sentences for the most serious offenders – who are already being sentenced to significant amounts of jail time by the judiciary. Rather they will handcuff the judiciary, preventing them from responding to unique facts and exceptional personal circumstances.
>> Read CCLA’s op-ed on this question “Mandatory Minimum Sentences Are Just Plain Wrong“
4. Prison conditions and disparate impact of amendments on aboriginal peoples and persons requiring mental health care: The proposed will amendments greatly increase the prison population, and are likely to have a disproportionate and devastating impact on already-marginalized communities – particularly Aboriginal peoples and those with mental health needs. These populations are already greatly over-represented in correctional institutions, and existing programs and services are already ineffective and insufficient to keep up with general demand. The elimination of conditional sentences for a range of offences is particularly concerning, as these flexible sentencing tools are used by the judiciary to allow single mothers to continue working while serving their sentence and preventing the breakup of families, or to ensure that those with underlying mental health needs get the community treatment that best ensures their recovery and rehabilitation.
>> Read CCLA’s op-ed on this question “Tough on Crime is not National Mental Health Strategy“
5. Unconstitutional amendments to the International Transfer of Offenders Act: The amendments attempt to give the Minister an unconstitutional level of discretion over when Canadian citizens, incarcerated abroad, can return to Canada. From a policy perspective, facilitating such transfers enhances public safety as rehabilitation and reintegration is enhanced when individuals are close to their families and have access to high-quality, culturally-appropriate programs. When offenders serve a portion of their sentence in Canada, it also allows the government to create records of their crimes and monitor their rehabilitation. Absent such transfers, offenders would simply return to Canada at the end of their sentence without any records or legal restrictions on their activities.
6. Increasing transparency and accountability: The CCLA welcomes the required 5-year review of the mandatory minimum provisions set out in s. 42 of the Bill and the requirement that the National Parole Board submit an annual report that includes the number of applications for record suspensions and the number of record suspensions ordered. Similar reviews and public reports to parliament should be undertaken with respect to the changes to the other acts.
The CCLA has been busy making submissions to the Parliamentary Committee that will consider the Bill. We also need you to lend your voice – call your MP, write to the Committee, make your opinion known! Download a list of committee members, and their contact information, here.
It Could Get Worse – Don’t Let it!