There are important ways for the unelected Senate to make meaningful amendments without challenging the thrust of the government’s bill.
There are many reasons to be wary of Bill C-10, the Harper government’s omnibus crime bill. For one thing, it will cost us millions – or billions – of dollars to accommodate the additional prisoners that its provisions will result in. These funds could, instead, be used to improve our safety through means that have proven effective, or to fund education, health, welfare, or other important public services. Furthermore, the bill, which purports to be a “Safe Streets and Communities Act,” will actually make us less safe in a number of documented ways. Research shows, for instance, that putting less serious offenders in prison will make them more, rather than less, likely to offend once they are released. Bill C-10 also creates bizarre anomalies. For example, a person found growing five marijuana plants in his own home for sharing with a friend will not be subject to a mandatory minimum prison sentence under this bill, but a friend growing six plants in a rented apartment for the same purpose must be sentenced to at least nine months in prison. It seems clear that the bill is flawed, and yet the government stands by it. With a majority government in place, and a democratically elected House of Commons responsible for passing this bill, it would seem that Canadians are getting their due for electing a government that prefers stupid policies. So what can be done?
When a bill is presented to Parliament, committees typically hear suggestions from a wide range of people and groups, and parliamentarians can use the information gleaned to improve on the first draft of the bill. Many important bills are improved in this way, even under majority governments. In the case of Bill C-10, however, the government did not allow a careful examination of the bill to take place in the House of Commons.
If the Senate is still capable of sober second thought, but does not want to challenge the elected house of Parliament’s right to make our laws, there is still hope: It is possible for the Senate to fix some of Bill C-10’s most glaring inadequacies without challenging the general thrust of the bill that was passed by the House of Commons.
There are many things that might be examined. For example, the bill proposes an amendment to the Youth Criminal Justice Act that would allow judges to authorize the publication of the names of youth found guilty of violent offences. This is problematic for a number of reasons. Criminal records for crimes people committed as youth normally “disappear” after a certain number of years of crime-free living, a policy that allows people to move on with their lives without being stigmatized for something stupid they did in their youth.
The bill says that an order allowing the publication of the name is part of the sentence and, as such, is appealable, but the fact is, the government’s change in the law would allow the publication of the young offender’s name immediately after the order was made. This exacerbates an existing flaw in the law: The names of youths sentenced as adults can be, and are, published within minutes of the judge’s decision to impose an adult sentence, even though that, too, can be appealed. In an internet world, it is meaningless – and dishonest – to say that this part of the sentence can be appealed if the name has already been published. The more logical approach would be to delay the publication of the name until all appeals have been dealt with. The Senate could easily propose this change without challenging the government’s fundamental right to make bad laws. At the very least, a change like this would turn a dishonest bad law into an honest bad law.
Similarly, the government has decided to “tighten up” on pardons – a program that has been in place in Canada since 1970. Pardons, soon to be called “record suspensions,” ensure that people who have offended, but lived crime-free for a designated period, can be given the opportunity to fully integrate into Canadian society and obtain jobs that otherwise might be unavailable to them as former offenders. Bill C-10 proposes restricting the types of offenders who are eligible for pardons, and increasing the amount of time that a person has to wait after serving a sentence before being granted a pardon.
There’s nothing wrong with changing the rules and perhaps making it more difficult for certain people to obtain record suspensions. However, given what we know about people’s patterns of offending over time, the proposed changes are crude. Over 400,000 Canadians have received pardons since 1970, and it is estimated that fewer than four per cent of them reoffended (and therefore had their criminal records reinstated). Under Bill C-10, a 50-year-old person who served three two-year sentences when he was in his 20s for breaking into homes would be unable to obtain a record suspension even though he might have lived an exemplary life for the last 20 years. This probably does not reflect the overall goal of this section of Bill C-10. It does make sense to have different waiting periods for different offences (and perhaps patterns of offences and ages of offenders), but in this area, the government seems to have gone into the Criminal Records Act with a blunt instrument rather than with careful thought.
The government does have the power and authority to make laws that will cost us millions of dollars and will, if anything, increase rather than decrease crime. The things I’ve mentioned here are just a few examples of the failings of a bill that is riddled with flaws. But there is still something that can be done to improve the situation. The Senate, if it is interested, could examine this 104-page law and fix certain things that need fixing, even if it did not challenge the overall thrust of the bill. For those of us who are worried about encouraging an unelected legislative body to use its power to overturn legislation passed by the House of Commons, this may be the best we can hope for.
Photo by Andrew Bossi.