Digging in Deeper to the Law and Order Agenda

November 13th, 2020

In recent posts, we have examined some of this government’s tough-on-crime agenda. Over the past several years, this government has enacted important reforms to the criminal law which strengthen sentences for drug trafficking, gun possession and use, terrorism financing and the consequences of failing to win bail. Success for the government has been mixed. For example, in one recent decision, the Supreme Court of Canada upheld the “plain language” interpretation of the Truth in Sentencing Act, which abolished that the old regime of “double time” (or even more in some circumstances) for anyone charged after the changes took effect. This interpretation came as somewhat of a surprise to those at the criminal bar (both Crown and defence) who felt, and often assumed, that what the Parliament meant was that the new rules (abolishing double time and restricting enhanced credit to a maximum of 1.5:1) applied to those who committed offences after the changes, but not before. However, the government has also suffered more than its share of setbacks, as we’ve shown in relation to drugs, guns and “dead time” for most offenders. Indeed, the setbacks have been significant enough that some have postulated that the Prime Minister and Minister of Justice vented their frustration in recent veiled criticisms of the Chief Justice of Canada over whether she inappropriately “weighed in” on the controversial selection of the newest Supreme Court Justice. CTV News recently published an interesting timeline on that controversy.

In the last couple of days, the media has also published some interesting insights on how the setbacks are affecting policy, and how, outside of the courtroom, the government may be trying to shape the agenda.

Today, the Vancouver Sun reported that a Supreme Court of Canada decision that did not generate much media buzz when it came out, in which the Court struck down certain aspects of the federal government’s tough-on-drinking-and-driving agenda, had thrown a real “monkey wrench” into the government’s plans to expand the use of increased, random roadside sobriety checks using hand-held devices. As the law stands now, police are required to have a reasonable suspicion that someone is both driving AND has alcohol in his or her body before being able to demand a roadside breath sample. Not only is that the case, but a fail is not admissible against the driver in a prosecution – it can only be used to support further investigation. According to the Vancouver Sun, the government is just not sure how to react.

And in another story today, the CBC reported that the government has in fact chopped the Department of Justice’s research budget by a whopping twenty percent. A primary reason for the cuts was apparently that the Department was turning out research that was not “aligned with government or department [of Justice] priorities.” An example? Apparently, one report found that, “many Canadians lacked confidence in the courts and prison system, but suggested it was the result of misunderstanding rather than any failures in the system, and that education could rectify the problem.” Another report, “found that harsher terms for first offenders had little bearing on whether they re-offended — a finding critics held to be contrary to the government’s agenda of tougher sentencing through mandatory minimums and other measures.”

The Department protests that the purpose of the cuts is unrelated to any sense of such dissent and insists that researchers will still be free to reach their own conclusions, but time will tell whether the research department’s pre-cuts reputation for being “perceived as non-biased and … valued for its high quality” will survive what may be the New Agenda.

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