The federal Conservatives are boasting that they’re pushing through more private members’ bills than any other government in Canadian history — particularly on criminal justice matters.
Public Safety Minister Vic Toews made the claim Wednesday as he announced official government support for yet another tough-on-offenders bill put forward by a Tory backbencher.
“In fact, private member’s bills have been used more successfully by private members in this Parliament than I think in the history of Canada,” Toews said at a news conference on Parliament Hill.
Looking only at what Toews called “substantive” legislation, “we as a government, probably going back to 2006, have made record numbers of private members’ (bills) in co-operation with the individuals who are sponsoring them, because they can get these bills through.”
“There are certain timelines and they move much quicker than government legislation does.”
And that has critics concerned that the Harper government is doing an end-run around parliamentary oversight, making a mess of the Criminal Code and setting up the legal system for years of constitutional challenges.
In the last month alone the government has announced it will throw its full weight behind three backbench justice bills: two that will restrict parole hearings and one that creates new mandatory minimum sentences for gang recruitment.
According to research compiled by Conservative MP Joy Smith, only 17 backbench MPs have managed to change the Criminal Code since Confederation.
At least half a dozen of those changes have come in the last seven years under the Harper Conservatives, with a handful more on deck.
Smith herself has done it twice — the only MP ever to achieve the feat — both with human trafficking bills.
Half of the top 20 Conservative private members’ bills introduced since the 2011 election involve either Criminal Code matters, a crackdown on prisoners or terrorism related measures.
Ned Franks, a professor emeritus at Queen’s University and one of the country’s pre-eminent experts in parliamentary procedure, said in an interview that some major Canadian legislation, including the abolition of capital punishment and changes to divorce law, “came in large part through private members’ bills.”
“They can be very useful tools for pushing reform that goes against the general opinion, and they have been,” said Franks.
“On the other hand, they can be used as instruments for very narrow causes or — as I think we’re seeing now — pushing the government’s program farther than the government is prepared to admit to in public.”
Franks said the Privy Council Office and the Justice Department scrutinize all government legislation, while private members’ bills get the assistance of Commons law clerks.
If the legislation ends up running amok, he said, the government “can always say these are not government bills — they are private members’ bills. Surely private members have a right to express their views?”
Justice Department lawyers must sign off on the constitutionality of government legislation, a step that private members’ bills bypass.
“They just lack the courage of bringing it themselves,” said NDP justice critic Francoise Boivin, a practising lawyer.
Boivin believes several will face Charter challenges, while others are simply clogging the court system — especially those imposing mandatory minimum sentences, which spur offenders to use every legal avenue rather than plead guilty.
“It’s just messy and you don’t mess with the Criminal Code,” said the New Democrat.
But a spokeswoman for Justice Minister Rob Nicholson said that before the government formally backs any private members’ bill, “Justice officials review the legislation to ensure it complies with the Constitution.”
Julie Di Mambro added that “the reason there are so many justice-related PMBs coming from Conservative members is because Conservative members, unlike their NDP and Liberal counterparts, actually care about crime and victimization.”
And that may point to the real, political motivation behind the government’s actions, said Liberal MP Sean Casey,
“Quite frankly, I think as much as anything it’s a fundraising tool for them,” said the Liberal associate justice critic. “I honestly believe that.”
Private members’ legislation setting stiff penalties for masked protesters, for instance, essentially duplicated existing Criminal Code provisions, said Casey.
“You feed that piece of red meat to the Conservative base and they’re sending you in five bucks,” said the MP.
“It seems as though everyone has to have their pet project to tweak the Criminal Code.”
But the cumulative impact will be significant, cautioned Elizabeth May, the Green party leader.
She said the bills “are designed around very specific situations that come from the pages of the newspaper but don’t represent real threats to democracy or public health and safety.”
They are “contributing to a transformational shift in our criminal justice system towards one that is petty and punitive.”
May cited the example of legislation that would imprison people for up to 10 years for defacing a war monument — a bill she said was sparked by a blind-drunk Canada Day reveller who urinated in the wrong place.