Safe Streets and Communities Act – Speech

On Tuesday, November 29th, 2011 in Speeches

Ms. Elizabeth May: Madam Speaker, it is with great pride that I rise today. The amendments put forward by me on behalf of the Green Party and by other members on the other opposition benches, the official opposition and the Liberal Party, speak to a desire of the majority of Canadians to see the bill fixed. I am particularly speaking to an amendment put forward under part I, the justice for victims of terrorism act.

I want to begin my brief remarks by paying tribute to one extraordinarily brave Canadian woman, Maureen Basnicki, whose great courage and perseverance in the face of losing her husband, Ken, in the disaster of 9/11 inspires us all.

I had a chance to talk to Maureen in the justice committee hearings. This was during the time we were transfixed by a government motion to end debate and push the whole bill through that day. She was disheartened, as an individual Canadian, that so much in the bill was caught up in an omnibus bill. As much as I support the efforts to allow Canadians, such as Maureen, who ever experienced the tragedy of personal loss to an act of terrorism overseas, and as much as it is quite right and appropriate, Canadians should be able to seek civil remedies overseas.

There is much in the bill that changes the characteristics of Canada and the values of Canadians in ways that do not reflect the kind of country we are. In fact, one of the trite things said after 9/11 was that if we abandoned civil liberties, if we changed what we were as a country, we had let the terrorists win.

To throw people in jail on mandatory minimums without the discretion of a judge who sees the person before him or her, without the opportunity of the criminal justice system to work toward restorative justice, without the opportunities that a compassionate justice system has to figure out if the person deserves jail time, or needs mental health facility where he or she can get the help needed, or is a victim of systemic racism or is someone for whom only criminal justice will work, needs revision. Putting forward my first amendment, which relates to the victims of terrorism act, is an important improvement in Canadian law and I support it. The amendment I have added today, should it be passed, will only expand the ambit of those Canadians who have been damaged by acts that fall well below the rule of law.

My amendment would add to the definition of terrorism that we would also recognize an act of torture to be something for which Canadians could seek redress overseas. It would apply to the case of someone like Mahar Arar. He was taken, in violation of all that is decent and in violation of all rule of law, not in recognition of his Canadian citizenship at all, and subjected to torture. He too would have redress to these civil remedies.

Since I have the opportunity to speak to the bill, as the hon. member from the official opposition has done, let me also speak to the broader problem. In the view of every criminologist, expert, academic who appeared before the justice committee and who commented on this through the media and in learned articles and so on, no one who has an experience of mandatory minimums believes they work. They do not believe they will reduce crime. They believe they will drive up the cost of our system and impose on the provinces. As has been so well pointed out by the provincial justice minister for the province of Quebec, there could be untold billions of dollars in the cost of new prisons.

We already have overcrowded prisons. To crowd them further will impose other problems. The state of California needed a court order to release prisoners because the overcrowding constituted cruel and unusual punishment in violation of its bill of rights. We do not want that situation in Canada.

I want to raise a very specific point that did not come up in committee. I believe it is very important for all Canadians to recognize that every member of the House of Commons favours law-abiding citizens. Every member of the House of Commons wants to do better than the bill does in supporting victims of crime.

However, the legislation will not deliver safer streets. I cannot say that forcefully enough. One of the aspects of this, which I do not think has received adequate attention, comes from the experience in the United States, when the Americans removed judicial discretion with mandatory minimums and gave power in the hands of prosecutors to exact plea bargains.

Plea bargains have become far and away more common than criminal trials, which means that presumption of innocence goes out the window. There is generally a sense that if one insists on one’s innocence and goes to trial, one will be punished down the road with a mandatory minimum. That is how prosecutors exact plea bargains. They say that if people go to trial, they will increase the offence. If they are found guilty, they will go to jail for 20 years instead of 2 years.

I will quote an article from the New York Times, on September 25, 2011, titled “Sentencing Shift Gives New Leverage to Prosecutors”, and a legal scholar, who was a former conservative federal judge and prosecutor and now law professor. I want to emphasize this and I hope members of Parliament will reconsider it and give weight to this last moment we have at report stage to fix this bill and get rid of mandatory minimums.

This is what former judge Paul Cassell said:

Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome. With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.

The story goes on to say:

Without question, plea bargains benefit many defendants who have committed crimes and receive lighter sentences than they might after trial.

In other words, taking discretion away from judges does not guarantee, as those on the government benches so desire to see, that people who are guilty of crimes will be put behind bars. They may get the perverse result that I am sure they do not want, that mandatory minimums drive us to a completely new system in which prosecutors have the ability to plea bargain. In that process, people who would have been found guilty before a judge and jury, and be subjected to a harsher sentence, would get a lighter sentence.

Yes, we will overcrowd our jails. Without the safety valve provisions in the amendments that we will be reviewing today, without an ability to say “mandatory minimums should not apply here”, without that, we will be crowding our jails.

We know as of now we are not putting sufficient resources into programs for mental health or to help people with addictions. We know that so many of the problems that occur in crimes on the streets have to do with systemic problems of poverty, lack of access to mental health resources, treatment and care and addiction. If we are not dealing with those, we are merely throwing people from the streets, where there are problems, into jails. Jails are not a solution to mental health problems. Jails are no solution to the absence of affordable housing.

This is not legislation that will work for Canadians. It will not make safer streets; it will make meaner streets. This is not a bill that deals with Canadian values. This speaks to some other country that I do not know. I do not want to live in a country that thinks it is better to impose stark mandatory minimums rather than have a criminal justice system rooted in the rule of law that recognizes the primacy of the value that goes back to the times of common law, before the existence of our great country of Canada. We recognize the presumption of innocence. We must not lose that.

We must not live in a country where a member of a governing cabinet can look across the floor of the House and accuse an opposition member, as if it were a crime, to have worked as a lawyer for the defence. The defence of people accused of crime is essential in a criminal justice system. As we know from Donald Marshall Jr. and the Milgaard case, innocent people get accused of crimes. Those people who defend them in court are an essential part of the fabric of a civilized society that understands the rule of law.

I do not think I have ever been so deeply shocked by anything I have heard in the House of Commons as an accusation that the hon. member, who now stands as the official opposition House leader, was somehow a bad person because before entering politics, while practising law, he defended people accused of crimes. We should remember that when someone is accused of a crime we do not say a person is “defending criminals”. The presumption of innocence is an essential part of the fabric of a civilized society. I fear we are losing that.

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