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Hill Dispatches: The spirit of Diefenbaker watches over crime bill debate

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Here is an exchange from Question Period on Wednesday, Nov. 2:

Joe Comartin (NDP): . . . the Conservatives are about to stick the provinces with a billion-plus dollars in bills for their prison agenda. . . [The provinces] want front line police officers. . . not more prisons. . .However, if [the Government is]. . . hell-bent on ramming through this bill, will [it] . . .at least listen to the three provinces that have come forward and said, "We're not paying the shot". . .?

Hon. Vic Toews (Minister of Public Safety, Conservative): I do respect my colleague opposite, but I know that he comes from a long and distinguished career of defending criminals, as a defence criminal lawyer. Our perception is a little bit different . . .

The ad hominem arguments are flying thick and fast in the debate over the omnibus crime bill, C-10.  Minister Toews wants to make it clear that he and his government have a different perception from that of lawyers who "defend criminals."

Mr. Toews is himself a lawyer, mind you, and had a distinguished career in the Manitoba government as legal counsel for a number of departments and as Director of Constitutional Law.

He also taught university courses and worked in the legal department of Great West Life.

But he wasn't a "criminal defence lawyer."

The ghost of "the Chief"

With all the lawyers in Parliament, it is hard to imagine there is not a single Conservative who ever "defended criminals." There was, however, one great Conservative in Canadian history who spent a good part of his career defending people accused of crime. That was John George Diefenbaker, Canada's 13th Prime Minister.

In September, the current Conservative government honoured Diefenbaker by naming an Ottawa government building after him (coincidentally, right next door to the building named after his Liberal rival, Lester B. Pearson).

At the time, the current Conservatives praised such Diefenbaker accomplishments as the federal Bill of Rights (precursor to the current Charter), granting the right to vote to aboriginal Canadians and setting the stage for the health-care program we know and cherish today.

Diefenbaker was proud of his career as a "defender of criminals" and was a vocal opponent of the death penalty. He knew that defence lawyers are an essential part of the judicial system.

And Diefenbaker often talked about the many people he defended whom he believed to be innocent. He was convinced, all his lilfe, that he lost a number of innocent clients to the gallows.

It is hard to imagine that Canada's 13th Prime Minister would have had much use for Bill C-10. But we'll never know.

Quebeckers offside with Tories yet again

Some of Canada's current crop of "defenders of criminals" had their say on C-10 on Thursday when Joëlle Roy of the Quebec association of defence lawyers appeared before the parliamentary committee considering the omnibus legislation.

Mme. Roy n'est pas allée par quatre chemins, as we say in Quebec. She did not beat around the bush, but got straight to the point.

"I know I am here to present our view and answer your questions, but I want to ask this government a question," she said. "Why is this bill necessary?"

"We have a functioning system, now, so why go ahead with these new draconian measures that are not supported by facts, statistics or any other evidence?"

The entire debate, Mme Roy said, is a false one, based on the notion that somehow we are not safe and secure here in Canada.  From the tone of the proposed legislation one might think there has been an explosion of crime in Canada - when the evidence shows the exact opposite.

"Gagging" the judicial system

Imposing minimum sentencing requirements on judges and prosecutors will effectively "gag" the judicial system, Mme Roy emphasized. It will prevent the system from dealing with each case individually, on its own merits.

Quebec, she said, believes in rehabilitation. It holds the view that the penal and judicial systems should consider the long term impact of their actions. And in the long term, she told the committee, society is best served by emphasizing crime prevention and the rehabilitation of offenders.

New Brunswick and City of Winnipeg are onside

Mme Roy did not get an answer to her original question because the Chair had to cut the committee meeting short to allow members to return to the House to vote on the new (unilingual) auditor general.

And so there was no chance for any personal attacks on the witness, based on the fact that - like John Diefenbaker - she "defends criminals."

The committee did hear from others, on the same day, much more favourable to Bill C-10.

The New Brunswick government gave tepid and qualified support; while Sam Katz, Winnipeg's mayor, expressed unqualified enthusiasm.

Katz was especially supportive of the new, tougher juvenile offender provisions. He complained about the fact that violent gangs in his city use juveniles to commit crime, knowing that if arrested they will be quickly on the street again.

The omnibus bill proposes longer incarceration for repeat juvenile offenders, adult sentences for violent offenders and the publishing of the names of serious juvenile offenders.

Child sexual predators provisions get wide support

New Brunswick's Justice Minister, Marie-Claude Blais, was especially interested in the provisions of the Bill dealing with child sexual exploitation (which the NDP's Jack Harris has  said his party supports).

She emphasized that sex crimes against children are not restricted to densely populated, big cities. New Brunswick may be a small province. It has nonetheless, Blais told the committee, had more than its share of sex crimes involving children.

For the most part, though, Mme Blais wanted to talk about New Brunswick's integrated approach to dealing with crime. We are working to break down the silos in government, she reported. Education, social services, justice and public security have to work together, the Minister told the committee, in order to prevent crime and provide effective rehabilitation for offenders.

While her government supports the changes proposed in Bill C-10 because they "give more effective tools" to police and prosecutors, the New Brunswick justice minister is not under any illusions that those measures will, on their own, solve the crime problem.

Some victims seek another approach

Three of the four other witnesses on this day did not offer much comfort to the Conservative government.

Wilma Derksen of Winnipeg spoke on behalf of the Mennonite Central Committee and an organization called Victims' Voice, of which she is a founder.

Ms. Derksen is the mother of a murdered child, yet she spoke against the new proposed tough-on-crime legislation. She does not believe that stiffer sentences and other punitive measures are the answer to the crime problem.

That answer, she said, lies in the school system, in social programs, in the community -- in a wide variety of measures and programs designed to "give young people a better life."

"The sentencing of the murderer of our daughter did not satisfy us," she explained to the committee, speaking of herself and her husband. "It gives us no satisfaction to think the killer will sit in jail for 25 years."

Look to the future, do not "lock up the past"

And Mrs. Derksen even expressed doubt about the idea of including the victim's voice at parole hearings, which is part of Bill C-10. That would serve neither the morale of victims nor the cause of justice, she said.

What Wilma Derksen does advocate is more attention to the real emotional, spiritual needs of victims and less focus on revenge.

In her view, we are investing too many resources in, to use her particular turn of phrase: "locking up the past." There is not enough investment, she says, in the present and the future.

Three words

The committee members did not get much time to ask questions of Mrs. Derksen, and the Conservative members seemed almost relieved at that.

They were much more at ease discussing something else, though. As the old Ruby/Kalmar song said, it was all about: "Three Little Words."

Those words are: "least restrictive measures" and they are a key part of the set of rules that now govern the treatment of offenders in detention.

What those three little words mean is that the authorities are required to use the "least restrictive measures" possible in controlling and disciplining inmates in their charge.

The new proposed  legislation would replace those three words with the notion of "necessary and proportionate measures." The two wordings may sound similar, explained B.C. lawyer Tom Jackson, speaking for the Canadian Bar Association, but they are actually quite different.

The current wording is designed to protect inmates' Charter rights (and the courts have clearly stated that, in Canada, inmates do have Charter rights).

The new wording gives the impression that guards and other authorities will be able to take "all appropriate" measures in controlling the prison population. Its emphasis seems to be more on the prerogatives of the authorities than on the rights of inmates. That would be a an erroneous interpretation of the new, proposed wording, Jackson said; but almost an inevitable one.

New "tools" for prison guards?

As though to prove Jackson's point, Pierre Mallette, President of the Canadian prison guards' union, said he believed the proposed legislation would allow guards to take whatever steps were needed to "discipline" inmates, especially those inmates guards believe  to be dangerous and violent.

And so Mallette expressed support for Bill C-10 on the grounds that it would provide his members "with the tools that they need." (Like the New Brunswick Justice Minister the leader of the guards' union focused on the machinery of the system, on the "tools".)

Guards need these "tools", Mallette argued, to deal with the really hard cases among the inmate population and with organized gangs that exist behind bars. Those bad apples, Mallette said, spoil the barrel for the majority of inmates who are ready to be rehabilitated.

Prison Ombudsman decries overcrowding

Howard Sapers, Canada's federal Corrections Investigator, the prison system's Ombudsman, sees things quite differently.

He agreed with Tom Jackson on the need to keep the Charter-inspired language in the rules governing treatment of inmates. And he quite forcefully talked about the significant problem of over-crowding in prisons.

Overcrowding leads to violence and infectious disease, Sapers said. And the burden of that violence and disease falls disproportionately on aboriginals and other minority groups.

He also questioned the proposed new legislation's restrictions on the use of pardons.

Offenders who now get pardons earn them, Sapers argued. Taking away access to pardons will impede the process of rehabilitation by making it much harder for many one-time offenders to find employment.

Finding a job isn't that easy, in these times, even for those who who have not served time in a federal pen.

Sapers' critique was clear, evidence-based, rational and persuasive. He is a respected public official who is not afraid to speak truth to power.

Term up in March

The Conservatives may not like what Sapers says very much.

They can feel good about one thing though: Sapers' term runs out in March, 2012.

The current government only has to put up with him for four more months; then it can appoint someone more to its liking.

Or, maybe this government will introduce legislation to abolish the penal system's Ombudsman (created in the 1970s) altogether.

And if the government were to try that and encounter resistance from the Opposition and civil society groups, it could always cut off debate and hastily push the legislation through Parliament.

This government does seem to be making a habit of doing that.

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