RSS FeedGovernment Ignores “Tough on Crime” Statistics
A great article just came off the Canadian Press wire. The upshot is that the Canadian government is ignoring the results of social science studies about crime and punishment. Here are some quoteable quotes:
Federal spending estimates indicate capital expenditures on prisons in Canada will increase by more than 40 per cent in 2010-11 to $329.4 million from $230.8 million this year, although the Conservative government has refused to publicly detail the costs of its criminal justice agenda.
…
“The great appeal of mandatory minimum sentences is that they give politicians the appearance of doing something, of being seen to be doing something,” Craig Jones, the executive director of the John Howard Society of Canada, said in a recent interview. “You must never underestimate the need for politicians to be seen to be doing something — even if, in some cases, it’s the wrong thing.”
…
In a 2008 speech, Harper flatly denounced research-based justice policies, accusing the pedlars of such policies of trying to “pacify Canadians with statistics.” “Your personal experiences and impressions are wrong, they say; crime is really not a problem. These apologists remind me of the scene from the Wizard of Oz when the wizard says, ‘Pay no attention to that man behind the curtain.”
…
More recently, Harper’s former chief of staff Ian Brodie told a McGill University forum last spring that informed criticism of the government’s justice agenda is a political gift: “It helped us tremendously to be attacked by this coalition of university types.”
OPP Officer Murdered, Tragic Irony…
First and foremost, R.I.P.
Unfortunately, as the reports circle around the internet, PC Vu Pham, 37, has succumb from his injuries he received in a shooting this morning. Pham leaves behind a wife and three children and a community, in which he was deeply involved, in mourning for his sudden, tragic, and senseless murder.
The 70 year old suspect’s name has not been released, but he will undoubtedly be charged above all else with first degree murder.
It is reported that PC Pham, a Vietnamese immigrant and veteran officer of 15 years, was attempting to stop a suspect vehicle from a report of domestic violence. If this is the case, it is the worst kind of irony, because today, March 08, is International Women’s Day. A day that in part is aimed at preventing violence against women.
This is the second police officer who has been killed in the line of duty in a week in Ontario. On Monday, March 01, Artem “James” Ochakovsky, a Peel Regional Police officer died in a traffic accident when his police cruiser hit another car and then wrapped around a telephone poll.
Although the deaths of Ochakovsky and Pham are different in nature, they are tragic to the community and especially the policing community.
I will save my personal opinion for my personal website, and if you are at all interested in reading it, follow this link.
IRB Under Review
Nicholas Keung of the Toronto Star says,
The issue of state protection has become more contentious following a string of recent federal court challenges – involving refugee claimants from Turkey, Kenya, Mexico, St. Vincent and, in Sterbyci’s case, Albania – that question assessments made by the Immigration and Refugee Board and enforcement officials…
TO PROVE ONE’S CASE, the refugee board suggests, claimants must demonstrate that the “state apparatus” of protection has collapsed, that people in similar situations are also not getting protection, or explain how they sought government help without success.
Refugee lawyers Luyt and Boulakia argue those guidelines and country-condition reports are selectively applied, and the recent federal court decisions would seem to support that.
… state protection cannot be automatically assumed in a democratic country.
Queen’s University immigration law professor Sharryn Aiken said it is only a partial victory for these refugee claimants, because their cases have only been referred back for redetermination; they still face removal from Canada.
However, it underlines the need in Canada for a refugee appeal division, a body with the authority to not only revisit evidence, but reverse wrong decisions, she said.
How lawyers think
We as a society know too little about lawyers. We believe some myths about lawyers (for example, that they are rich), but we know little truth about them. It’s pretty strange given the two critical things lawyers do in our society: ensure access to justice and help regulate behaviour. The good news is it’s easy to learn the basics of how lawyers think, which empowers you in dealing with your lawyer and as a citizen.
The basic premise of legal reasoning is that it’s all about the courts. Everything lawyers do is about predicting the outcome of litigation that may or may not happen (at least in common law countries like Canada). That is ultimately the only thing lawyers do even though it may look like your average lawyer is busy with a million other roles. It’s clear that litigators think about litigation, but the other kind of lawyers—those who draft or vet contracts, wills, letters and applications—also always have the courts in mind. The difference is that the litigators already have a dispute on their hands, and non-litigators go out of their way to prevent a dispute.
Courts have the power to review any private or government action and decide if it’s legal. Our courts’ rulings are binding on all parties to the dispute, even the government. Because our courts are independent and have constitutional powers, anyone can sue anyone else including the Prime Minister and have a fighting chance. This is called the rule of law, and that’s why we have so many lawyers.
Good lawyers try to think the way judges would think because lawyers have only two purposes: to prevent litigation and to win in litigation. It’s all about the courts in our legal system. In my previous essay, I asked a question about inalienable rights in Canada. It was a legal question. Its purpose was to figure out if there was any way for Canadian courts to uphold taking away of all Charter rights. I concluded that courts could technically do that, and that’s why my answer was that there were no inalienable rights in Canada.
My reasoning wasn’t political: I didn’t look at the balance of power among political parties or their inclination to attack Charter rights. It wasn’t economic: I didn’t crunch numbers to see when Canadians could no longer afford Charter rights. It wasn’t social: I didn’t look at what groups in our society would take what position on the issue. My reasoning was legal: I tried to predict what arguments could convince judges to allow the elimination of Charter rights.
The legal argument doesn’t take politics or economics into account but it’s still powerful because the courts have huge power in Canada. Court will listen to economic and political arguments (they are called policy arguments), especially in constitutional cases. But I assumed in my previous essay that the country must be in an emergency politically and economically for the extreme legal argument against Charter rights to succeed.
So lawyers always try to predict what the courts will say, even when the police or a government ministry will most likely resolve the issue. In some areas, such as immigration, government officials have enormous discretion, and the courts often trust their judgement. In those cases, the lawyers certainly try to predict what the government official will decide, but even in those cases, lawyers know that every official is subject to judicial review. The government understands this too, and it certainly limits how far agents of the state go in their discretion. So the courts are still in the picture, at least because they leave the government alone. But they can pull the leash quickly if the government oversteps its bounds or if the courts change their interpretation of how much they should trust the government’s judgement in the given area.
Lawyers (at least when they earn their keep) think like judges. A good legal argument resembles a judicial decision that a judge could almost copy in potential litigation. And even lawyers who draft contracts and wills think about the courts, because they try to describe their clients’ rights in words that no judge will question. That’s why Mr. Burns’s lawyer said “this should hold up in any court” handing his boss yet another evil contract in one of The Simpsons episodes.
Knowing that lawyers think in terms of disputes in courts can empower an ordinary citizen. First, when you go to court without a lawyer, you will know that you really should get one, even if it’s a law student. The courts are the be–all and end–all, and you need someone who knows what judges want to hear. Second, if you have a lawyer, it will be easier to see if he is doing a good job. Try to think of future disputes over your contract or will, and see if your lawyer is taking care of that in the text. Finally, you should know about the power of lawyers and judges because the courts are the only unelected branch of power in Canada, and you as a citizen should know why and how the system works and how to make sure it continues to work in the future.
Further reading: Frederick Schauer, Thinking like a Lawyer: A New Introduction to Legal Reasoning, (Cambridge: Harvard University Press, 2009).
(Post sponsored by AdviceScene)
17 Ridiculous American Laws
As a sequel to Law is Stupid Too, we present 17 ridiculous laws still on the book, via Huffington Post:
- In Missouri, It is Illegal To Drive With An Uncaged Bear (Caged Bears Are OK)
- In Maine, It’s Illegal To Have Christmas Decorations Up After Jan. 14
- In New Jersey, It is Illegal To Wear A Bulletproof Vest While Committing A Murder
- In Nevada, It Is Illegal For A Man To Buy Drinks For More Than Three People At A Time
- In Wisconsin, It Is Illegal To Serve Butter Substitutes In State Prisons
- In New Jersey, Once Convicted Of Drunk Driving You May Never Again Have Personalized Plates
- In North Dakota, Beer And Pretzels Cannot Be Served At The Same Time In Any Bar Or Restaurant
- In Alaska, Waking A Sleeping Bear For A Photo Opportunity Is Strictly Forbidden
-
In Connecticut, A Pickle Is Not Officially A Pickle Unless It Bounces
- In South Carolina, You Must Be 18 Years Of Age To Play A Pinball Machine
- In Michigan, Anyone Over Age 12 May Own A Hand Gun As Long As He/She Has Not Committed A Felony
- In Idaho, It Is Illegal For A Man To Give His Sweetheart A Box Of Candy Weighing More Than 50 lbs
- In North Carolina, Bingo Games Can’t Last More Than Five Hours
- In Connecticut, It’s Illegal To Walk Across A Street On Your Hands
- In Louisiana, There Is A $500 Fine For Instructing A Pizza Delivery Man To Deliver Pizza To A Friend Unknowingly
- In Ohio, It Is Illegal To Get A Fish Drunk
- In Arizona, It’s Illegal To Own More Than 2 Dildos
Speaking of getting “tough on crime”, how about “hate”?
When a local Georgian Township man, Trevor Middleton, was convicted of assault and criminal negligence in December, 2009, friends and family of the victims were hopeful that justice was served.
The Toronto Star
During the case, the jury had heard how Middleton and his friends had engaged in the practice of “nip-tipping” – that is, they would push into the water individuals who were fishing and who were of visibly Asian descent. This would be on the pretense that such people were fishing illegally, without licenses, or catching more fish than they were allowed to.
As well, the jury had heard how, after this altercation, Middleton had pursued the victims in his F-150 pick-up, how he had rammed their Civic with his truck, and how the victims were forced off the road and into a tree. The jury also had heard how one of the occupants, Shayne Berwick, suffered severe brain injury and is now confined to a wheelchair.
As a result, the jury had taken all of three hours to find Middleton guilty.
Parliament Set to Fight over Crime
Before Stephen Harper prorogued Parliament, before he made sure to be televised hobnobbing with athletes at every possible turn at the Olympics, he had filled the Lower House with a slate of crime bills, which all died upon prorogation. Now they’re back, and Harper is ready to be “tougher on crime” than ever before.
But the Liberals aren’t so ready to let the Conservatives push through their “tough on crime” agenda. Dominic LeBlanc, a former (and, hopefully, future) contender for the Liberal helm, now justice critic, was quoted in today’s National Post:
“This is the first government to politicize the Criminal Code,” said Mr. LeBlanc.
He accused the Conservatives of bringing forward “gimmicky” bills with “silly names” such as the “Protecting Canadians by Ending Sentence Discounts for Multiple Murderers Act.”
The politicization of justice reform has been a topic for concern since Harper’s ascent. In any event, we’re bound to hear the terms “soft on crime” and “tough on crime” thrown around a lot as our legislators return to work after their vacation.
Nicholson Ends 2-for-1 Special
Justice Minister Rob Nicholson has ended the discretionary practice of giving criminals double credit on time served awaiting trial. Previously, for example, a convict who had waited two years for trial could take four years off their sentence (or in the case of the deplorable Don Jail, six years at three-for-one).
In a National Post editorial, Nicholson wrote:
Of course he did not offer any evidence as to why these criminals had been released too soon.
Nor did he mention the justification that had led to the two-for-one option in the first place – reasons such as the “terrible conditions” that exist in correctional facilities. Reasons such as that the prison system is grossly overcrowded. Reasons such as that time served before a trial is psychologically harsher than time served after conviction/acquittal.
Nicholson did not explain how the new law will substantively prevent crime, or relieve the conditions that inmates awaiting trial endure. One can only conclude that the new law will lead to even more overcrowding in correctional facilities.
The reason for the new law is optics. As I wrote recently, political dialogue has become locked in a false “tough on crime” or “soft on crime” dichotomy. Nicholson is determined to show that his party is tough on crime (not to vindicate the other parties, all of whom supported the bill, especially the Liberals). Nicholson in the Post editorial:
And Nicholson to the CBC:
This will bring more truth in sentencing and give Canadians confidence that justice is being served
Let’s remember that the criminal law is not about public perception, and it’s not designed to compensate victims (for that we have tort law), rather the criminal law is designed to keep society safe and functional. I fail to see how this bill adds to that goal, and neither Nicholson nor anyone else has indicated that the bill does anything but play off of fear and misconception.
Are there inalienable rights in Canada?
We in Canada like to think of ourselves as free. We also like to think we have rights. The police can’t throw us in jail for our political views. And if they do throw us in jail for any reason, the police must let us call a lawyer. A part of Canada’s constitution, the Canadian Charter of Rights and Freedoms guarantees our rights and freedoms. But the constitutional rights and freedoms such as freedom of expression, a right against arbitrary detention or imprisonment, and even our right to life, liberty and security, are not absolute. The Charter leaves loopholes for the federal Parliament, provincial legislatures, or even judges to limit or take away any rights or freedoms. There are no inalienable rights in Canada.
A legal right is a claim to a benefit. The law sets legal rights, and the courts will enforce them if no one else will. When you sign a contract to lease an apartment in exchange for rent, your tenant has a right to use the apartment, and you have a right to some of the tenant’s money. Your right is always someone else’s duty, which is either to give up the benefit you claim or to let you claim the benefit freely. You can also have rights against the government. For example, habeas corpus is a right to see a judge if the police arrest you. Freedoms are like rights but they are more about enjoying benefits you already have, such as speech or movement. Still, the flip side of every freedom is someone’s duty to respect it. For example, if you have a freedom of religion, the government may not ban your faith.
But rights and freedoms in our relations with the government are tricky because the government is a sovereign. It means that within its geographic borders the government writes the law. What good is a right if the government can scrap it? That’s where a constitution comes into play. It’s a superlaw that tells the government what laws it can and cannot write. And it’s very difficult for the government to change the constitution. The Canadian Charter is the part of our constitution that orders the government to respect certain human rights. If a provincial or the federal legislature passes a law infringing on our Charter right, the courts can strike that law from the books. It will have no force and effect. That way the Charter protects us from the government.
Even democracies need this protection to stop majorities from oppressing minorities. For example, our legal tradition has very good reasons for protecting some rights of the criminally accused. Only a minority of the total population will ever need these rights. Whether justified or baseless, a fear of crime can bring a party that wants to do away with these rights to power. In theory, our Charter will always stop the Parliament from touching the rights of the criminally accused. Before the Charter, the Parliament could throw out the presumption of innocence or the law against self-incrimination. A constitution can also protect racial, gender, or other minorities from discrimination. We can be sure of our human rights only when they are safe from the majority and the government it elects.
The Charter promises us this safety, but it doesn’t really deliver. There are several loopholes in the Charter that let the federal parliament, provincial legislatures, or the courts take away rights. First, the notwithstanding clause in s. 33 empowers legislatures to suspend fundamental freedoms (s. 2) and legal (ss. 7-14) and equality (s. 15) rights. Perhaps for fear of the ballot box, legislatures tried it for real only very few times. But if the government can suspend the rights, they are not inalienable.
Second, the most obvious limitation on all rights and freedoms in the Charter is in s. 1. It basically says that sometimes the Charter will not protect our rights. Suppose the Parliament passes a law that bans newspapers in a certain language. If the government can justify this law as reasonable “in a free and democratic society,” it can get away with it under s. 1. Who decides what’s reasonable and what’s free and democratic? Ultimately, it’s the nine people on the Supreme Court of Canada. Sometimes a s. 1 justification is a very hard task, but a right or freedom is guaranteed only if it’s legally certain, not if it’s probable or very likely. So the government can strip anyone of any Charter right with the consent of the Supreme Court.
Third, the courts decide what each right and freedom in Canada actually means. For example, s. 7 allows the government to deprive anyone of “the right to life, liberty, and security of the person” only in accordance with “the principles of fundamental justice.” The Supreme Court decides what these principles are. Next, the Charter often defines rights using the principle of “reasonableness,” which is really a code word for letting the courts fill in the details. See, for example, the right against “unreasonable search” (s. 8), the right to be tried within a “reasonable time” (s. 11(b)), etc. When the police breach our Charter rights to obtain evidence against us in a criminal investigation, we have a right to have it excluded from our trial—but only if “the admission of it in the proceedings would bring the administration of justice into disrepute” (s. 24(2)). Again, the courts decide what that means by applying factors laid down by the Supreme Court.
Finally, if the government breaches your Charter rights, the courts decide what compensation you get if any. It is little comfort to you and little deterrent to the government if the courts merely declare government action unconstitutional. Denied or insufficient remedies gut Charter rights and freedoms. As the recent case of Omar Khadr has shown, the Supreme Court can deny a meaningful remedy even for breaches of the most basic rights such as a right to fundamental justice in s. 7. Most Canadians don’t seem to like Omar Khadr or his family, so the majority is clearly not on his side. The Supreme Court didn’t say that it let the government off the legal hook because of the views of the majority of Canadians. But these views possibly encouraged the government when it violated Khadr’s Charter rights or denied him the requested remedy. What is the value of rights that depend on politics?
One can argue that these cases are extreme and that limits on our Charter rights are fine because we trust our government. After all we elect it. But consider this. First, majorities elect the government, and how certain are you what the majority will be like 20 years from now? Are you going to be in that majority? Do you want to entrust your most basic human rights to a majority? Second, even election rights in the Charter are not inalienable. Mix a national emergency with the right people on the Supreme Court (appointed by the Prime Minister; no Parliament’s consent required), and the words “reasonable,” “free,” and “democratic” in section 1 of the Canadian Charter can have a very different meaning.
The word “inalienable” expresses the idea of rights that the law can never let anyone take. An inalienable right is yours by the fact of your membership in the human species. No government or person gave you this right, so they can never take it away. It is yours by birth. It recognizes your inherent value as a human being regardless of who you are, what you did, or what you think. Very few rights can be inalienable but those that can are truly fundamental: a right to a fair trial, freedom of speech, habeas corpus. The US Declaration of Independence speaks of “Life, Liberty, and the pursuit of Happiness” as inalienable rights. The Universal Declaration of Human Rights recognizes “the inherent dignity and of the equal and inalienable rights of all members of the human family.”
Our Charter does not have the word “inalienable,” neither in letter nor in spirit. It uses other words. But social conditions change, and what’s not “reasonable,” “free,” or “democratic” today can become such in the future. There is a fully legal path to breaches of any rights in Canada. It doesn’t necessarily mean it’s possible politically, socially, or economically, but legally our rights are uncertain. A constitution that fails to protect minorities from the majority’s changing moods does not guarantee rights. The loopholes in the Charter show that we have rights and freedoms only as long as the government and the Supreme Court let us. Rights and freedoms in Canada do not inherently belong to us as human beings but are revocable gifts from the government and the courts. And if we can’t change our Charter, we must at least hold our government to account especially strictly when it comes to human rights.
Countdown to the New Competition Act Provisions
Last May, the Competition Bureau published a draft version of the Competitor Collaboration Guidelines in order to receive public feedback on proposed amendments to the Competition Act regarding conspiracies or agreements to reduce competition. The revised version published in December contains two new provisions that will come into effect on March 12, 2010. If you are interested in reading the Guidelines or the new provisions, an online version is available on the Competition Bureau website.
The Guidelines outline the general approach that the Bureau will take in its enforcement of the amended criminal prohibition in s. 45, and the newly added civil agreements provision in s. 90.1 of the Act. These provisions create a comprehensive enforcement system that makes it difficult for alleged offenders to elude sanctions for anti-competitive practices. In the Guidelines, it is emphasized that the criminal prohibition will only be enforced against conspiracies, agreements or arrangements between competitors to “fix prices, allocate markets or restrict output that constitute “naked restraints” on competition”. Criminal sanctions should not be pursued against legitimate collaborations between competitors that are beneficial alliances. These new provisions also indicate a shift in the approach to enforcing the Act towards greater transparency and certainty. Read more
Billing By The Hour
There has been a great deal of discussion among legal commentators about the failure of hourly billing for legal services and the need for alternatives. The most recent article I’ve seen is in the CBA’s Jan/Feb issue of National. Although I’m a law student and have never billed a single hour as a lawyer, I have worked for more than a decade as an entrepreneur and I wonder … what are the alternatives, really, but masked versions of hourly billing? Given the limited amount of hours available to work in any day/week/year/lifetime, billing by the job MUST reflect the time that the task requires.
Flat fee services must have caps on the input of resources to succeed as business models and, as a result, will tend to put a floor rather than a ceiling on the cost of any given service. At best, a flat fee will reflect the average amount of time required to perform a service. Innovators can find ways of doing things more quickly through economies of scale, computer processing, outsourcing and so forth, but price reductions that service providers choose to pass on to the clients can be built into an hourly billing model just as easily as any alternative. Innovations might put pressure on hourly rates through competition, but this has nothing to do with the method of billing.
Frankly, I fail to see how alternatives to billing by the hour will change the cost of legal services. The real pressures on cost come from the the well-known forces of the marketplace … the rest is just packaging. And if clients are becoming more sophisticated, will they really be impressed by a fancy one-size-fits-all (unless you want more) gift bag?
The real issue is value. Lawyers that provide it will gain clients and those that do not will lose clients. Those who insist on talking about how the billing is done, please explain (and be nice about it): What am I missing?
The Politicization of Justice Reform
This afternoon, Julian Falconer gave a talk at the Empire Club of Canada titled “The Politics of Punishment: Depoliticizing Justice Reform.” He focused primarily on the Harper government’s “tough on crime” agenda, and made some most interesting observations.
Canada spends $3.5 billion per year on crime. It costs $108,000 per year to incarcerate one inmate. Stephen Harper is proposing $5 billion in “tough on crime” spending, with none of the increase earmarked for crime prevention.
There is a systemic dilemma: in politics, proponents of judicial reform are forcibly grouped into one of two camps; Falconer referred to this division as “hug-a-thug vs. Law and Order.” If a politician questions the “tough on crime” approach, they are instantly categorized as weak, as someone who would embrace the criminal threatening your family.
Falconer compared Harper’s agenda to similar “tough on crime” agendas implemented decades ago in both California and New York State (largely part of the War on Drugs). Incarceration rates were dramatically increased, and today California houses 170,000 prisoners.
The American experiment has failed. While incarceration rates increased dramatically in the US compared to Canada, the crime rates of both countries remained similar. The US now has a financially unsustainable prison population, and nothing to show for it. Arnold Schwarzenegger has abandoned the “tough on crime” approach in favour of funding schools.
Studies have shown that incarceration raises an individual’s disposition toward crime. Incarceration disproportionately affects native communities, the poor, the mentally ill, and other disadvantaged groups. Yet instead of seeking to remedy the causes of crime, instead of seeking to ameliorate the conditions of these groups, we have the newly-minted Senator Bob Runciman crowing,
This despite the fact that crime rates have been dropping for years. This despite empirical evidence that tough-on-crime has failed in the US. The politicization of dialogue creates the false illusion of irreconcilable extremes. The reality should not be “hug-a-thug vs. Law and Order” – there is a solution that rests without the extremes.
Podcast Feeds
Awards
Partners
- Advertise Here
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
The Whiners - The Elusive Fish Creative Services
- Mesothelioma Lawyer
- no win no fee solicitors
- Compensation Claims
- personal injury lawyer toronto
- no win no fee
- Pardons Canada Accident Claim Medical Negligence Whiplash Claim
- No win No fee Claims
- Venue
-
-
-
-
-
-
-
-
-
-
-
-
