“When the Charter of Rights and Freedoms was established thirty year ago today, there was a different attitude in Ottawa.  Government was seen as a guardian of our rights and freedoms,” said Elizabeth May, MP Saanich-Gulf Islands and Leader of the Green Party.

“Under the Harper Conservatives, government is more often viewed as a threat to those rights and freedoms, and nothing could be more dangerous to Canadian society and values than an assault in the name of democracy.”

The Charter, established in 1982 to replace the Canadian Bill of Rights, formed the first part of the Constitution Act of the same year.  It was designed to unite Canadians around a guaranteed set of rights – including democratic, equality, legal, language, and mobility – and freedoms – conscience, religion, thought, belief, press, assembly and more.

Over the past six years, the Green Party notes that Charter rights in various aspects of our lives have been compromised.  One of the first things the Harper Conservatives did was to cancel the Court Challenges Program, which offered funding to women’s and minority groups to challenge court rulings they felt violated the Charter.

“Closing the Law Reform Commission and ending the Charter Challenges programme have chipped away at Canadians’ ability to fully exercise Charter rights,” said May.

Women’s Charter rights to equality have been systematically weakened. The Green Party of Canada has called on the Harper Conservatives to reverse major funding cuts on Status of Women Canada, and restore the word “equality” to its mandate. 

Harper eliminated pay equity as a basic right in the 2009 budget, calling it “a rip off.” He has ignored calls for comprehensive national strategies to provide daycare and combat violence against women.

An important Charter check is the enforcement of Section 11(b) (the right to be tried within a reasonable time).  In the last five years, jail and prison stays have been on the rise, due to too few judges and Crown attorneys, and insufficient legal aid.  The Harper Conservatives’ newly passed Bill C-10 will inevitably result in increased arrests and incarceration, compromising Charter rights further, especially among the vulnerable.

At the same time, Bill C-10’s call for mandatory minimum sentences likely contravenes Section 12 of the Charter (protection against cruel and unusual treatment or punishment) and could result in multiple court challenges.  

Police are rarely, if ever, disciplined when they breach the Charter.  This must end.  Such breaches should be considered very serious when intentional and slightly less serious when due to negligence or ignorance.

The Green Party has called attention to the Harper Conservatives use of Security Certificates, allowing detention without charge and no access to evidence for reasons of national security, as undemocratic and a violation of the Charter. “Secret trials” are a slippery slope.

An indication of the power of and need for the Charter is the fact that the Supreme Court is on record saying the death penalty would likely violate Section 12 (cruel and unusual punishment). Thanks to the Charter, the Harper Conservatives have insisted they will not re-introduce the death penalty. 

Canada’s immigration and refugee system was once seen as one of the best in the world, in part because it reflected Charter rights.  With the Harper Conservatives’ Bill C-31, these rights are being gravely compromised, especially with the bid to lock up refugees 16 and over for a year without review, if ordered by the Minister.  This aspect alone contravenes Charter Sections 7 (right to life, liberty, and security), 9 (right not to be arbitrarily detained or imprisoned), and 10 (right to retain counsel and more).

However, there is some good news.  The Supreme Court of Canada ruled unanimously against the Harper Conservatives’ attempt to close down Insite, Vancouver’s supervised injection site.  The Green Party has been a supporter of Insite as it has reduced health and public safety risks within a vulnerable population. Citing Section 7 of the Charter (the right to life, liberty, and security), the Court held that the Minister’s refusal to grant an exemption to Insite under the Controlled Drugs and Substances Act was arbitrary and grossly disproportionate in its effects. The Minister was ordered to grant an exemption.

“The Charter of Rights and Freedoms is and can continue to be an effective tool for maintaining a fair, just society and democracy in Canada,” May concluded, “but, under the present circumstances, we have to work very hard to protect it.”

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Seconded by Elizabeth May on September 20, 2012

Click here for the full document.

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My question for the hon. member relates to what I regard as the fundamental matter before the House at this moment. As members of Parliament we have taken an oath of allegiance to Her Majesty the Queen in Right of Canada. Each of us has taken an oath to uphold the Canadian Constitution. In the case of Regina v. Smickle, the Ontario Superior Court has ruled that these mandatory minimums offend the charter and are likely unconstitutional. It seems to be beyond our ability to grasp that we are passing a law that is in itself illegal.

Does the member have any comments on that problem, for each of us as individual members?

Jack Harris: Mr. Speaker, the member for Saanich—Gulf Islands has raised a novel question as to whether or not there is some question of an oath.

I am saying this as someone who is a lawyer, as is the hon. member. I have read most of the case of Mr. Smickle. It is a rather unfortunate set of circumstances. It is also potentially a unique law where if the Crown prosecuted by summary conviction, the maximum sentence was one year, and if the Crown prosecuted by indictment, which it did, the minimum sentence was three years. There was no possibility of any sentence between one and three years. The Crown was the one that made the decision, not the court, not the judge.

I am not a fan of mandatory minimum sentences, although we did support that in the case of sexual offences because of the national consensus on that. We may have to look again at the aboriginal solutions within communities for that, but we supported that.

I do not think the court said that all mandatory minimum sentences were unconstitutional. That court is a court of first instance.

I do not think, despite what debate we might have about it, that we are somehow bound by our oath not to vote against it. I will certainly be voting against any aspect of Bill C-10. I do not know if we can say the members opposite are voting against something that is definitely constitutional. The member for Mount Royal has said that much of it is constitutionally suspect, but that is really for the courts to decide.

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Never before in Canadian history has this country withdrawn from a treaty we have ratified – not on any issue. Ever.

I don’t see how other delegations that dealt with Canada’s obstructionist position in Durban, in which we negotiated as a Kyoto party, will possibly regard this as anything but negotiating in bad faith.

Ever since CTV broke the story that the Harper Cabinet had decided to legally withdraw from Kyoto – with no debate and no vote in the House – I have been, at one and the same time, certain the leak was correct while hoping they would not go through with it.

And now they have.  It is devastating.  It is even worse than all the other regressive steps of the Harper government in blocking climate action.

Kent announced legal withdrawal with a flurry of bizarre and untrue scare tactics.  As if the Kyoto Protocol had effective sanctions for law breakers like Canada.  As if Kyoto had the kind of draconian mandatory minimums of the Omnibus Crime Bill.   Kyoto has no effective enforcement mechanisms.  The only penalty would be for a country that decided to enter into second commitment period negotiations (NOT Canada). And even then it would only mean that the target Canada would negotiate (if we were negotiating) would have a top up of .3 of a tonne for every tonne we agreed to.  So in negotiations we could take into account the amount of the penalty and set out target low enough to absorb the penalty.  Each country negotiates what it will accept.  That’s why in 1997, Australia’s Kyoto target was 8% above 1990 levels, when all other industrialized countries were to go below 1990 levels. (Canada by 6%, US by 7%, and the EU by 8 %.)  True most European nations did not hit 8%.  They cut 20% and more.  Europe as a block has more than met its Kyoto targets.

Kent claimed staying in Kyoto would cost $14 billion.  Rubbish.

What are they spinning?  The cost of trying with no plan and a year from the target to reduce our emissions enough to meet the 6% target — and then deciding to buy enough credits to meet the target — could be $14 billion.  I haven’t checked their math because the whole idea is screamingly bogus.  Nothing in Kyoto obliges us to spend one dime.  Nothing in Kyoto could induce or require a country to buy credits.

And now, despite Harper’s death wish for Kyoto and Kent’s “Kyoto is in the past,” look what was approved in Durban:  a second commitment period under Kyoto.  Not enough countries have signed up to accept targets, but the intention is to do so.  Hardly “in the past.”

What’s in the past?  Canada’s reputation as a country with any integrity.  Canada’s reputation as a country showing environmental leadership.

What must not be “in the past” is our chance to avoid cataclysmic climate change.

We are running out of time (see latest International Energy Agency report).  Durban’s agreements are weak and Canada just gave them a swift kick in a place that hurts.

So although, like me, you may feel like throwing yourself down and weeping for the betrayal of our future, for the loss of Canada’s ratification of Kyoto, do not waste the energy.  Get back up.  And fight.

Get back up and resolve: Stephen Harper must not be allowed to get away with this.  There must be a political cost.

Write letters to every newspaper denouncing the will of the majority of Canadians who support Kyoto was ignored.  Spend some time on media websites.  Write comments. Vote thumbs up and down. If you have a Conservative MP, leave them messages on the constituency phone lines.  Demand an appointment. Organize protests. Go on line to petitions.  Send a donation to the Sierra Club, Suzuki Foundation, or WWF and ask them to mount campaigns to demand we stay in Kyoto.  Our legal withdrawal does not take effect until next year, so we have time to push back.

Ask why Parliament was allowed to vote on Kyoto ratification (December 17, 2002) but given no chance to debate or vote on withdrawal in 2011.  Ask why they are lying to Canadians and claiming staying in Kyoto would cost $14 billion.

I know it is almost Christmas, but how can we rejoice with our children and grandchildren when a lifeline to their future was just sawed off by a reckless government?

This is not a partisan issue.  Mulroney showed global leadership on climate.  Chretien ratified, but never gave us a plan.  Paul Martin (with Dion as Environment minister) produced a decent plan.  Stephen Harper killed the plan within weeks of becoming Prime Minister.  It is clear that the Prime Minister does not have one single solitary clue of why reducing GHG matters.  But he does understand political cost.  This betrayal must cost.

Even though it is almost Christmas, almost Hanukkah and holidays, skip some last minute shopping.  Whatever you were going to buy, your children need a liveable world much much more.

The post Kyoto withdrawal: There must be a political price to be paid appeared first on Elizabeth May.

As well, could the member let the House know which of the mandatory minimum sentences she is against or feels is too long for some of these violent repeat offenders?

Ms. Elizabeth May: Madam Speaker, the problem with mandatory minimums is not personal to me. Rather, it is a universal problem among the people who have seen how they operate. There could be higher sentences. I was giving an example from the United States. Former judge Paul Cassell said that what is happening, in which case it is not theoretical, is it gives greater discretion to the prosecutors. As these are not cases that get to court, there is a plea bargaining process that can provide lighter sentences for people who could have had their sentences increased had they appeared before a judge.

In summary, my amendments propose to delete all of the mandatory minimums for all of the offences, not because people should not go to jail, but because in each case a judge should decide how long each convicted person should go to jail.

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My colleague proposed some amendments today. I would like her to remind us what she based those amendments on. Whom did she listen to in order to come to the conclusion that this bill needed some amendments?

Ms. Elizabeth May: Madam Speaker, I listened to every expert, witness, academic and legal expert.

There is a huge body of evidence that calls for this bill to be amended. Every criminologist is saying that mandatory minimums do not work and that we should not go down that road. In listening to them, I put forward amendments. I have a great hope that at this last minute members of the governing party will give them every consideration and consider changing the law to make our streets safer.

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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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The Bill, which returns Tuesday to the House of Commons for debate at Report Stage, reflects strategies evidence has shown are not effective, and have been thoroughly discredited in every other jurisdiction in which they have been tried. And although C-10 will fundamentally alter the Canadian justice system, the government has refused to allow for meaningful debate in the House.

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“In addition to removing judges’ discretion in sentencing and costing Canadian tax-payers billions of dollars to build the new prisons required to house additional people, Bill C-10 will disproportionately target already marginalized communities, and create a less compassionate justice system. These are changes that have not been adequately debated in the House of Commons,” said May.

“The amendments that I am tabling today will go a long way towards softening the Bill’s harshest effects. This includes handing a measure of control back to our judges by creating sentencing safety valves, such as removing mandatory minimum sentences for small quantities of marijuana. I would also like to see a transparent, annual review of the changes, so that both legal experts and the general public can analyze the impacts of C-10 on Canadian society,” May continued.

“Now, more than ever, we must resist the rush to judgment and contempt; and to punishment and pain. Working together, with a collective vision, we should ensure that every man, woman and child in this country is fed, clothed, educated, housed, and able to live to their full potential, not throw away our values and tax dollars on new laws that will further victimize and criminalize the most marginalized, poor, racialized and vulnerable Canadians. Too many women and children are victimized, criminalized and imprisoned,” says Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies. “Jails are not the shelters battered women and abused children need. Canadians are telling us that they would rather see their hard-earned tax dollars spent on public housing, child care, pensions, health care, mental health services, public education, victims and other social services.”

“Judicial discretion has traditionally been a central pillar of our justice system. Judicial discretion allows sentences to reflect the particular circumstances of the offender, the offence, the community and the victims. The Criminal Lawyers’ Association is deeply troubled by the continued erosion of this discretion. Mandatory sentences, a one size fits all solution, inevitably results in unfairness,” said Michael Spratt, of the Criminal Lawyers’ Association. “The evidence shows mandatory minimum sentenced do little to prevent crime or make our communities safer. The Criminal Lawyers’ Association welcomes the amendments as proposed by Ms. May. These amendments eliminate many mandatory sentenced, allow Judges the discretion to impose justice and fair sentences, including conditional sentences. The proposed amendments reflect evidence as opposed to ideology.”

“I hope that the government’s unprecedented use of time-allocation to shut down debate won’t mean that our proposed changes to the Bill will not be discussed. This is going to be the last chance for Members of Parliament to speak for changes to the omnibus crime bill,” said May.

“We are going to do everything we can to draw attention to the fact that this legislation unjustly targets Canada’s most vulnerable communities, including First Nations and people suffering from mental illnesses. It strips away judicial discretion and removes our traditional emphasis on rehabilitation. These are basic principles of the Canadian justice system. The bill will cost the Canadian economy countless billions of taxpayers’ dollars for an approach that even Texas admits doesn’t work.”

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I know the government members always throw back at us that they are listening to the victims of crime and not all the experts, but surely they should listen to their own Department of Justice.

Scott Armstrong: Mr. Speaker, we also listen to front-line law enforcement officials across this country, officials like union president Tom Stamatakis, who said:

Whether it is by keeping dealers and producers off the streets and out of business, or by serving as a deterrent to potential dealers, this proposed legislation will help our members in doing their jobs and keeping our communities safe. In simple terms, keep these criminals in jail longer, and you take away their opportunity to traffic in drugs.

We are going to continue to listen to our front-line law enforcement officers. They are the ones who are dealing with this every day. We are going to stand and support our police across the country.

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I would be grateful for any comments from the member for Edmonton—Strathcona.

Linda Duncan: Mr. Speaker, as my colleagues stated earlier, many in the U.S. government, both at the state and the federal levels, are raising questions about the past policies of the U.S. government and are moving toward the kind of measures we are proposing which are to prevent crime.

Indeed, we need to reconsider the elected members making the decisions on what the appropriate sentence should be and instead rely on the judges and prosecutors who hear the details of each case.

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