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Scott Newark's picture
A New Agenda on the Horizon?
Posted on Nov 05, 2015
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With the swearing in of Prime Minister Justin Trudeau and a new Cabinet this week, it is a virtual certainty that Canadians can expect some changes from this new majority government on matters related to public safety and security. What is less clear is how sweeping those changes will be, what priority they will be given and exactly how they will be accomplished. 

In trying to predict those issues a good starting point is the Liberal election platform which was released late in the campaign and which received little attention...seeing as,   how, thanks to Steve et al, everyone appears to have been focused on whether Justin was ‘ready’ or not.

The platform actually offers some surprising detail on what is intended including, of course, the defining commitment to (sort of) ‘legalize’ marijuana possession and consumption which is stated as  “We will remove marijuana consumption and incidental possession from the Criminal Code…”.

It may be that the drafters of this particular plank were engaged in uhhh…policy ‘testing’ when they drafted this because possession of marijuana is not an offence under the Criminal Code but instead under the Controlled Drugs and Substances Act. Whatever man.

The bottom line is that this legalization initiative, however restrictive, will be an enormous undertaking that will affect multiple agencies and attract less than supportive attention of our neighbours to the south. The commitments also include what appears to be the development of a joint federal provincial regulatory and taxation scheme which may be rather complex especially if our newly invigourated First Nations decide they want a piece of the action as well.   

The Liberals committed to sensible improvements in relation to firearms acquisition, transfer, classification and transportation tracking and these changes can be accomplished through a combination of legislative and regulatory reforms. Get ready for the ‘gunny community’ to go berserk. The $100M annual commitment for additional police funding to target street gangs is also a welcome operational enhancement.

Included in the platform were commitments targeting domestic violence although increasing mandatory maximum sentences as promised is largely just for show as Courts in Canada almost never impose the maximum sentence available. Similarly, the commitment to make partner assault a mandatory aggravating factor at sentencing already exists in s. 718.2 of the Criminal Code. Must have been the same policy research team. 

The commitment to launch the long requested public inquiry into missing and murdered aboriginal women and girls could also be of actual substantive value if it focuses on the at risk profiles of the victims and known threat posed by killers so as to attempt to determine if there are relevant factors which can be addressed to remove or at least reduce the risk to female victims. This kind of focus will not be without controversy but it could finally bring attention to relevant social issues rather than just blaming the justice system.

Prime Minister Justin Trudeau has repeatedly expressed his support for our traditional practice of broad judicial discretion at sentencing (‘this offender, this offence') which will likely mean a review of the multiple changes made by the previous government to impose mandatory minimum sentences. Doing this collectively in a portion of a larger Criminal Code reform bill may be the method selected.

Although nothing has been specifically mentioned, there will almost certainly be pressure on the new Government from the offender advocates and defense lawyer crowd to repeal the amendments that reduced pre trial custody credit (mostly awarded to repeat offenders), eliminated early  parole for first degree murderers (faint hope clause) or which allowed consecutive parole ineligibility periods for multiple killers. These are targeted and sensible improvements which strengthened public confidence in our justice system by reducing the ‘say one thing do another’ approach which undermined it.

The other significant area detailed in the platform dealt with security issues generally and with changes to C-51 specifically. The changes identified are not surprising as they have been identified by multiple commentators including Committee witnesses and some Conservative Senators on the National Security Committee which reviewed the Bill. The Liberals would be well advised to include these people in their analysis of what changes are actually needed and what is the best way to achieve them.

The items specifically listed for review in the platform include commitments to:

  • guarantee that all CSIS warrants respect the Charter of Rights and Freedoms;
  • establish an all-party national security oversight committee;
  • ensure that Canadians are not limited from lawful protests and advocacy;
  • require that government review all appeals by Canadians on the no-fly list;
  • narrow overly broad definitions, such as defining “terrorist propaganda” more clearly;
  • limit CSE powers by requiring a warrant to engage in the surveillance of Canadians;
  • require a statutory review of the full Anti-Terrorism Act after three years; and
  • prioritize community outreach and counter-radicalization, by creating the Office of the Community Outreach and Counter-radicalization Coordinator.

The Counter Radicalization commitment is especially important because unlike the criminal justice world where success is measured in prosecution, in matters of terrorism, success is defined by prevention which is harder to actually measure. This will not be without controversy but pragmatic guidelines do exist if the political will is there to get the job done.

The new Government will also likely abandon the ‘niqab case’ appeal which actually was a procedural dispute about Ministerial authority rather than a Charter analysis as it was portrayed. Same thing with the ‘barbaric practices snitch line’ which was politicized from the get go.

It also appears that the new government will recalculate refugee determination and ‘safe country’ based reviews and remove the visa requirement from Mexico which could lead to a return of the abuse of the Canada-US Safe Third Country Agreement that was intended to prevent asylum shopping.

The platform contains commitments to strengthen border surveillance, including in the Arctic, and this may also mean that CBSA is finally expressly authorized to perform enforcement duties between ports of entry and to participate in the cross border enforcement ShipRider program. Equally welcome is the express commitment to “…conduct a thorough review of existing measures to protect Canadians and our critical infrastructure from cyber-threats. These last items have been overlooked for far too long and hopefully a new government will bring a new vitality to address them.

Ideally, the safety and security commitments contained in the Liberal platform will actually be a guide to specific deliverables that address important issues. Hopefully this new Government will also pursue a substantive, informed, and non partisan approach in its decision making which will encourage MPs and Senators of all parties to participate.    

Ever the optimist.

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Scott Newark is a former Alberta Crown Prosecutor who also served as Executive Officer for the Canadian Police Association, Director of Operations for the DC based Investigative Project on Terrorism and as a Security Policy Advisor to both the Governments of Ontario and Canada. 

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