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The omnibus crime bill: What is to be done?

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On March 12, despite months of protest across the country, the federal government's omnibus crime bill (euphemistically known as the "the Safe Streets and Communities Act"), cleared its final Parliamentary hurdle when the Harper Conservatives voted 154-129 in the House of Commons to pass the legislation. Now the bill goes to the Governor General for royal assent. This was despite:

- The opposition of over 30,000 Canadians who signed the Leadnow.ca petition calling on both members of Parliament and Senators to reject the legislation;

- The opposition of many groups such as the John Howard Society of Canada, the Canadian Association of Elizabeth Fry Societies, the Canadian Civil, Pivot Legal Society, the Canadian Drug Policy Coalition, the Indigenous Environmental Network, the Canadian Union of Public Employees, Educators for Sensible Drug Policy, the Canadian AIDS Society, the Canadian Federation of Students, Reclaim our Democratic Canada, the British Columbia Humanist Association, the National Union of Public and General Employees, the Church Council on Justice and Corrections, the Canadian Barristers Association, the Canadian Association of Social Workers, and the Association des services de réhabilitation sociale du Québec -- all of whom spoke out against the legislation;

- The opposition of the New Democratic, Liberal, Green, and Bloc Québécois parties;

- The government moving time allocation on three separate occasions to rush the passage of the legislation.

The passage of the Bill C-10 is a triumph of ideology, obstinacy, and stupidity over reason -- and a sad day for Canada and Canadian democracy. So, in the words of Nikolai Chernashevsky's 1863 novel, still equally germane 150 years after its publication, "What is to Be Done?"

Above all, not to despair. This is but the first skirmish in what may be a lengthy battle. Far from being a fait d'accompli, there is much that can still be done to counter this punitive, pointless, and draconian legislation.

While it is true that the federal government passes criminal law, it is nonetheless the provinces that administer it. While provincial attorneys general cannot not enforce the law of the land, they nevertheless have several important cards up their sleeves.

In a case at the Supreme Court of Canada called R. v. Hauser, [1979] 1 S.C.R. 984 which was a decision of the court related to prosecution of offences under the federal Narcotics Control Act, Justice Dickson wrote an extensive section relating to the constitutional division of federal and provincial authority related to the Criminal Code. The salient part of the decision said:

(3) Thus ... as the provinces have exclusive authority in respect of "the administration of justice". The exclusive power of the federal government with respect to criminal law and procedure is, therefore, limited.

(4) If the legislation creating a federal offence is in pith and substance criminal law as, for example, the Criminal Code, then the provinces have the exclusive supervisory authority for the prosecution of offences under that legislation.

Broadly speaking, then, the division of authority would be as follows:

(3) The Attorney General of the province would have exclusive authority in respect of federal statutes, the pith and substance of which is criminal law.

So, while the provincial attorneys general cannot tell police or prosecutors not to enforce articles of criminal law, they certainly can -- and routinely do -- indicate, from a policy perspective, what their prosecutorial priorities are. Such priorities could include not increasing police or prosecutorial resources to enforce the provisions of the omnibus crime legislation.

Judges (both provincially and federally appointed) cannot be instructed by any level of government on how to apply the law, although if the Crown considers that a judge may have contravened the law, an appeal can be taken to a higher court. However, since the Crown in this case is apt to be the provincial Crown, it could simply choose not to appeal. So, for example, if a judge were to not apply mandatory minimum sentencing as specified by Bill C-10, then the provincial Attorney General could simply elect not to appeal this decision -- and the provincial Crown cannot be forced to appeal by the Attorney General of Canada.

Thus if a province were to want to limit the impact of measures in Bill C-10, there's little that the federal government could do to force them to comply. All that is required is intestinal fortitude on the part of the provinces.

In the fall of 2011, Quebec's justice minister, Jean-Marc Fournier, said that Quebec will refuse to absorb the added costs associated with Bill C-10, estimated at $500 million for the province. On March 13, just after the legislation passed, the minister said he will issue a directive to various players in the criminal justice system to avoid, as much as possible, applying the strictest provisions of the crime bill, adding that "It's not for Quebec to finance the costs of an initiative from a federal government that refused to collaborate with provinces on the content of the legislation."

Ontario Premier Dalton McGuinty said that his province is unwilling to pick up the tab for the costs for the legislation which could add up to over $1 billion in Ontario for new prison costs alone. Newfoundland and Labrador's Justice Minister, Felix Collins, joined the chorus in condemning this legislation. Nova Scotia, Prince Edward Island, and Nunavut have all voiced concerns about the costs associated with the legislation. Now that Bill C-10 is on the cusp of being enacted, will these provinces continue to have the courage of their convictions?

In February 2012 an Ontario Superior Court judge refused to apply a mandatory minimum sentence for a weapons offence. The appeals in this case are expected to go all the way to the Supreme Court. The omnibus crime bill could see similar instances of judges refusing to apply mandatory minimums as set out by the new legislation. If this occurs, appeals could certainly work their way up to the Supreme Court for a final decision on the fairness and legality of mandatory minimum sentencing guidelines.

If the federal government has lost touch with the values of the majority of Canadians, and with the knowledge and concerns of the many organizations and individuals associated with the criminal justice system, it may fall to the provinces to use their powers to defend those values. Will sanity, legality, effectiveness, and cost effectiveness prevail, or will Canada follow in the footsteps of the failed American "tough on crime" agenda -- which most American jurisdictions are now abandoning in droves, as being wildly expensive and ineffective in reducing crime?

What, indeed, is to be done? It has now fallen to Canadian citizens to make their concerns felt to the provincial governments, premiers, and attorneys general. If reason is to prevail, we need to look beyond the Harper Conservatives and their narrow ideological interests to the better angels of Canadian nature.

Christopher Majka is a biologist, environmentalist, policy analyst, and arts advocate. He is chair of the Nova Scotia Cultural Action Network and a member of the Project Democracy team. This article was first posted on Behind the Numbers.

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