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Jody Wilson-Raybould holds private meeting on legal-system reform

Minister of Justice and Attorney General of Canada Jody Wilson-Raybould speaks with the media in Ottawa on Dec. 9, 2015.

Adrian Wyld/THE CANADIAN PRESS

Shortly before the assisted-death bill became law, Justice Minister Jody Wilson-Raybould convened a private meeting with a hand-picked group to discuss what should come next on her agenda. There were sitting judges, criminal lawyers, even a former Progressive Conservative prime minister, Kim Campbell.

The group's consensus: The first priority should be to reduce the numbers in Canadian jails. Even as violent crime fell to 50-year lows, the federal prison population spiked over the past 10 years, which participants at the brainstorming session said represented a failure of tough Conservative justice.

"There wasn't one person who felt that what's happened in the last 10 years in criminal justice is healthy," one participant, who asked not to be identified, told The Globe. (A confidentiality clause barred participants from revealing what individuals had said. Other participants confirmed the account.)

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Over a two-day meeting on May 19 and 20, Ms. Wilson-Raybould prepared to embark on a review of criminal justice mandated by Prime Minister Justin Trudeau.

An official summary, obtained by The Globe, stressed the need to help individuals address the problems that bring them into conflict with the law: "The criminal-justice system is rarely the answer and should function as a last resort."

Under the heading "Early Actions," changes that could be put on the table later this year or early next year could mean blowing up much of the Conservative agenda: addressing the use of solitary confinement; cancelling some mandatory minimums; expanding the reach of conditional sentences; cutting back on the victim surcharge (the Conservatives made an existing financial penalty for convicted criminals mandatory, even for impoverished ones); dealing with credit for pretrial custody (the Conservatives tried to reduce routine credit from two days for each day served to one; the Supreme Court allowed one 1/2 days credit to be routinely given); and taking another look at pardons (some spoke about how the long waiting periods introduced by the Conservatives have made it much harder for ex-convicts to succeed).

Who was at the May meeting is as revealing of the changes to come as what was said. There were four judges, including two current currently serving, Chief Judge Thomas Crabtree of the British Columbia Provincial Court and Justice Sanjeev Anand of the Saskatchewan Provincial Court. (The former government reduced judicial discretion in a series of sentencing bills, and at times engaged in public disputes with judges, outside of the country's courtrooms.)

Also, groups that had once been in favour in Ottawa now had little voice. There was just one police representative, no victims' representative and one prosecutor – actually a retired prosecutor, Rupert Ross, an author in the area of aboriginal justice. They were easily outnumbered by four criminal lawyers, one of whom, Alan Young of Osgoode Hall Law School in Toronto, has spearheaded successful challenges to marijuana and prostitution laws. The Chief Statistician of Canada, Wayne Smith, made a presentation on evidence-based research, which some legal observers felt was anathema in criminal justice during the Conservative era. And there was a strong indigenous contingent, supplemented by aboriginal-justice reformers such as retired Yukon judge Barry Stuart.

Ms. Wilson-Raybould won more than a few fans at the session.

"I don't remember the last time I was so awestruck by a minister," one participant said. "She was that impressive. A very engaging person."

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Some spoke longingly of 1996, when a Liberal justice minister, Allan Rock, introduced conditional sentences (a form of house arrest). The Harper government banned the use of conditional sentences for dozens of crimes, and imposed 60 mandatory minimum jail sentences for a variety of guns, drugs, sex and other offences. As of April 1, 14,865 people were incarcerated in federal prisons, up 17.3 per cent from the 12,671 prisoners in 2006.

"There's too many people in jail," another participant told The Globe, summarizing the views of others at the meeting. "There's too many First Nations in jail. There's too many people with mental-health issues. There's too many women in jail. There's too many vulnerable in jail."

Ms. Campbell told The Globe most participants recognized that "deprivation of liberty is a traditional punishment and it is important, but it also has unintended consequences. Very often it means you have cut people off from productive engagement in society."

Having sitting judges participate in a working session with a justice minister is considered unusual. Judges are limited by guidelines on political activity, but the guidelines do not have a specific prohibition on participating in such direct discussions.

Judges stand to be directly affected by the talks, by regaining discretion over sentencing that they lost when the Conservative government imposed dozens of mandatory minimum sentences.

"This is, I think, quite unusual – at least to do it openly in this way," University of Calgary law dean Ian Holloway, who was not at the session, told The Globe. "Of course, judges take part in conferences and speak on panels, and oftentimes politicians will be in attendance. But to invite them to tea, so to speak, to seek substantive advice on law reform – well, that doesn't happen that often."

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The Office of Chief Judge Crabtree explained in an e-mail why he chose to participate: "The Provincial Court of British Columbia deals with approximately 95 per cent of the criminal cases in the province. The Court therefore has a unique perspective from which it can identify issues impacting the criminal-justice system. One of the roles of a Chief Judge is to engage with justice-system leaders as appropriate and to provide factual information that may promote a more effective justice system."

Joanne Ghiz, a spokeswoman for Ms. Wilson-Raybould, said in an e-mail that "individuals were invited to share their deep experience and vision as it relates to the framing of the review. They participated as individuals, because of their reputations and work, not for the positions they hold. The conversation did not touch on any specific case(s) and participants were under no obligation to attend."

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