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The Year in Review: Some laws the Liberals should rewrite

Canada's Justice Minister Jody Wilson-Raybould speaks during Question Period in the House of Commons on Parliament Hill in Ottawa, Canada, December 7 , 2015. REUTERS/Chris Wattie


Prime Minister Justin Trudeau's mandate letter to the new Minister of Justice, Jody Wilson-Raybould, adds up to a massive agenda. Much of this, to be sure, will be matters of undoing the Conservative government's criminal justice legislation, and relieving a number of harsh measures – with a couple of notable exceptions that go in quite the opposite direction: toughening "criminal law and bail conditions in cases of domestic assault" and punishing parents who spank, even within the reasonable limits that have been set by the Supreme Court of Canada.

When the mandate letter says there should be "a review of the changes in our criminal justice system and sentencing reforms over the past decade," i.e., the era of the Harper government, Mr. Trudeau is strongly intimating that a range of mandatory minimum sentences should be repealed – and rightly so. No, this does not mean that the new government is against all mandatory minimums in the Criminal Code. Everyone agrees that there should, for example, be a mandatory minimum for murder.

The mandate letter is also right in calling for less use of solitary confinement, which tends to create or aggravate mental illness. This was already under way in October, in response to the Ashley Smith inquest.

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The Liberal government intends to "legalize, regulate and restrict access" to marijuana. It's a sensible goal, though not easy to apply in practice. Those three verbs can be slippery. Will 18-year-olds share with, or sell to their 17-year-old friends and customers? If legal pot is restricted by high taxes and regulation, will it drive users to the black market?

The Anti-terrorism Act, best known as Bill C-51, may present the most fraught issues. Mr. Trudeau's mandate letter calls for the repeal of the law's "key elements." Which elements are those? In the election campaign, the Liberals naturally didn't want to look as if they were "soft" on terrorism. Only Thomas Mulcair and the NDP advocated the repeal of C-51. The election result suggests that the Liberals' strategy was the one that worked; they said they would revise it later.

But what if C-51 is all of a piece, for good or ill? (We think it tends toward the latter.) The Liberals could end up gutting legislation they voted for in Parliament, partly in uncertainty, partly for positioning and opportunism. Gutting a law they voted for will look hypocritical. Then again, who or what are small "l" or large-L Liberals, if they aren't for civil liberties?

The essence of C-51 is that the Canadian Security Intelligence Service now has the power to do more than just gather "intelligence," that is, information. It has been turned into a specialized police force as well, independent of the RCMP.

The vagueness, or breadth, of the expanded role of CSIS is supposed to be about "reducing threats to the security of Canada." If there is a threat, then CSIS can take "measures" to "reduce" it. The generality is breathtaking. Yes, there is a definitions section, but it is too sweeping to be helpful.

If such a bill had been enacted wisely, it would have included a new intelligence oversight committee, such as the ones in Britain or the United States, which have on the whole worked well. There, questions can be asked in a secure environment, in the genuine hope of being answered.

The most tortuous and talked-about clause of C-51 does not quite go so far as to say that the security authorities can apply for a warrant to breach the Charter of Rights and Freedoms, though the upside-down, topsy-turvy syntax comes perilously close.

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Law professors Craig Forcese and Kent Roach, who followed the rushed, clause-by-clause committee study of the bill earlier this year, saw that the Conservative government could not or would not see what Section 1 of the Charter means by "reasonable limits prescribed by law" – arguably the most important words in the Constitution Act, 1982.

The previous government seemed to think that "limits" and "law" could mean just what one judge, off the top of his or her own head, would find reasonable at the time and in the circumstances, rather than drawing upon pre-existing principles, rules and standards, in a long, continuing tradition. That's the crux of the matter, which the Conservatives refused to see. As for the Liberals, they should at least have voted against C-51's worst clauses.

The Liberals say they will review C-51 after three years, by which time another federal election will be approaching. Yet they also say that, in the meantime, they will amend it here and there, including setting up an oversight committee and providing an appeal for everyone on the "no-fly" list – all of which is good, but insufficient. Why tack on a few amendments now, but only review the whole thing in three years? Review it now.

Ms. Raybould-Wilson and Mr. Trudeau have a lot of work to do on this. They should start sooner rather than later.

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