RSS FeedNicholson 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.
Tough-on-crime legislation targets big fraudsters
White-collar criminals face new sentences
Campbell Clark writes for the Globe and Mail:
The federal government will legislate two-year minimum sentences for big-money frauds of more than $1-million, seeking to assuage an outcry over a series of Ponzi schemes and rip-offs that came to light as financial markets tanked.
Canada’s own version of SEC to be vetted by Supreme Court
Ottawa to seek top court ruling on single securities regulator
Unlike the US, Canada doesn’t have a national securities regulator. Canadian constitution is somewhat equivocal in its division of powers between provinces and Ottawa. It sounds like a good idea for the federal government to refer its plans to the Supreme Court before spending money and influencing securities markets. Especially, since one province is not happy about these plans at all.
Les Whittington writes for the Toronto Star:
[Flaherty] has been supported by the province of Ontario and many other provinces. But the province of Quebec is against a single regulator, which it considers an infringement on its political autonomy under the constitution.
Proposed Drunk Driving Law Would Face Constitutional Challenge
Reported by Canwest News Service, the Canadian Department of Justice is proposing a new law that would allow police officers to randomly demand breath samples in an effort to curtail drunk driving, without respect to whether or not the officer thinks the driver has consumed alcohol. The idea was brought forth by federal Justice Minister Rob Nicholson at a recent meeting of Mothers Against Drunk Driving (MADD).
Currently, s. 254(3) of the Criminal Code stipulates that an officer must first suspect consumption of alcohol before commanding a breath sample:
Samples of breath or blood
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood;
(emphasis added)
The emphasized qualification in s. 254(3) above protects against unreasonable search and seizure, a constitutional right as laid out in s. 8 of the Charter of Rights and Freedoms:
Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.
If Parliament were to change the statute in the Code, then a constitutional challenge would almost certainly ensue. (It harks back to another recent road-related challenge: street-racing laws which place absolute liability on a driver caught racing). It would probably be found that the new statute violates Charter s. 8; the issue would then be if this limitation of rights can be “demonstrably justified in a free and democratic society”(Charter s. 1).
Impaired driving kills between 1350 and 1600 people per year. Would it be reasonable and proportional to limit the fundamental rights of all Canadians to enable a tool in combating this scourge?
Federal Court rules on challenge to last year’s election
Watchdog failed to show 2008 vote illegal: Federal Court
Sue Bailey writes:
Harper asked the Governor General to dissolve Parliament last September despite his own fixed-date election law. That law set the next federal vote for Oct. 19, 2009 – or sooner, if the government lost a non-confidence vote.
Democracy Watch says Harper broke his promise of election reform and the spirit of the law in a blatant grab for majority power.
But Justice Shore said the group’s lawyer, Peter Rosenthal, gave only vague evidence as to how the snap campaign put opposition parties and voters at a disadvantage.
The Crown argued the Prime Minister had a right to “pre-empt a non-confidence vote,” despite the fixed-date election law.
