The country’s foremost legal organization has delivered a grim assessment of the Harper government’s get-tough-on-crime agenda, attacking mandatory minimum sentences and questioning Ottawa’s eagerness to put offenders behind bars.
With a series of blunt statements and policy resolutions, the Canadian Bar Association’s annual conference bristled at inaccessible courts, inappropriate jailing of mentally ill offenders and costly measures that threaten to pack prisons.
Resolutions passed by the CBA governing council meeting Sunday urged accurate costing of government measures and the creation of a “safety valve” that would permit judges to shuck off the straitjacket of mandatory minimum sentences in cases where it would cause an injustice.
Conservative Justice Minister Rob Nicholson arrives Monday to face questioning at the hands of his legal confreres, whose skepticism promises sparks.
Mr. Nicholson will almost certainly be called upon to address prison overcrowding, a proliferation of mandatory minimums, a lack of community resources to handle mentally ill offenders who languish in jails and the cost of the Tories’ tough-on-crime policies.
After several years of highlighting its crime agenda only to have opposition parties thwart the passage of its bills, Mr. Nicholson has pledged to bundle all of the unpassed laws into an omnibus bill that would become law within 100 sitting days of the new Parliament.
It includes eliminating pardons for serious crimes, adding maximum minimum penalties for certain drug offenders and sexual predators, and cracking down on bail for violent, young offenders.
The government has previously succeeded in passing laws creating new mandatory minimum offences, preventing offenders from being granted extra consideration for time spent in pretrial custody and eliminating early parole for first-degree murderers.
The CBA resolutions were passed unanimously after speeches that denounced the federal government for ignoring a host of data showing that Conservative crime measures run counter to expert opinion and falling crime rates.
“No doubt, there is public support for being tough on crime,” said Loreley Berra, a Saskatchewan prosecutor who endorsed a resolution calling on the federal government to reveal the true costs of its crime agenda. “But where is the money going to come from? Health care? The environment?”
Dan McRury, a Nova Scotia prosecutor who proposed the mental-illness resolution, said in an interview that all players in the court system are frustrated by the lack of alternatives to deal with sick offenders.
“There are too many people who are mentally ill and should be dealt with in the health system as opposed to the criminal justice system,” Mr. McRury said. “We need more sentencing options. One size does not fit all.
“Being tough on the most vulnerable in our society is not humane,” Mr. McRury added. “Unfortunately, deinstitutionalizing our mental hospitals has meant that we have exchanged prison cells for hospital beds – but without having enough supports in the community.”
Another resolution passed by the 37,000-member organization called for governments to stop toughening laws without regard to the historic plight of aboriginal people and the over-representation of aboriginal offenders in prison.
The resolutions came on the heels of a Saturday speech in which Chief Justice Beverley McLachlin revealed that an international survey ranked Canada ninth out of 12 European and North American countries when it comes to access to the court system.
The finding – by the World Justice Institute – underlines the fact that justice is increasingly available only to the wealthy or a small minority who are so poor that they qualify for legal-aid programs, she said.
“This is not terrible, but it shows that we are not doing as well as we should,” Chief Justice McLachlin said. “I think the Canadian Bar Association and other groups concerned about justice have to recognize that this is an area in our justice system that needs attention.”
Chief Justice McLachlin urged lawyers to move forward swiftly with programs aimed at promoting access to the courts, including free “diagnosis” of legal problems, expanding legal-insurance plans and subdividing complex cases to make them more affordable, and providing services pro bono.
She also decried the number of mentally ill offenders who end up behind bars or in a “revolving door” where they spend time in police custody or jail and are released after a few days.
The issue is a top priority for police, prosecutors and judges she has spoken to, Chief Justice McLachlin said.
Among the problems, she said, is the lack of beds for mentally ill offenders requiring psychological assessments, particularly young people.
“We still have work to do,” the Chief Justice said. “But the good news is … there’s much more public awareness of mental illness and its interplay and how it affects the justice system.”