Charter protection or efficiencies

June 18, 2013

 Law Times (Canada) – Shannon Kari
Paper touts ‘no jail’ option in exchange for reduced Charter protection

 On May 16, Lori Sterling, Associate Deputy Minister for the Justice Department, selectively sent out a discussion paper which seeks efficiencies in the justice system.  The paper says that “we feel it is necessary to ponder the following question: Is this (Charter) protection necessary and appropriate with respect to every offence? In the post-Charter world, moving towards greater proportionality is challenging, but, the committee believes, essential.”   http://www.lawtimesnews.com/201306173289/headline-news/paper-touts-no-jail-option-in-exchange-for-reduced-charter-protection  (cf attached pdf for the discussion paper)

 Catherine Latimer, Executive Director of John Howard Society:
An analysis and some other considerations to Justice Efficiencies

 Finding greater efficiencies and improving access to our overburdened criminal justice system is critically important but this should not be done by compromising the Charter rights of the accused.  Charter rights apply in relation to the extent that liberty interests are affected and this should be a key principle when looking at proportionate responses.

Some of the options – non-criminal justice system procedures for impaired driving and minor property offences – are certainly worth pursuing.   The decriminalization of certain offences, like marijuana possession, would also be effective in making the criminal justice system consistent with current values and efficient.  Also maximizing front end programs and alternatives to the criminal justice system, such as mental health and substance abuse programs, would be economical and effective. 

Some of the proposed options in the Department of Justice paper (such as the “no-jail” election and hybridization) tend to invest a lot of discretion and power in the Crowns.  It would be better to embed the “no jail” premise in the Criminal Code so the accused would know the potential criminal consequences at the earliest stages of the process to help inform options.  For example, the Criminal Code could include a list of less serious offences, such as mischief, or designate all summary offences as not punishable by a custodial sentence unless the Crown serves notice that custody is going to be sought and the Crown meets a relatively high test for justifying custody in the circumstances (something equivalent to the test for adult penalties in the youth justice system).  Such a designation might also have the effect of reducing the numbers in remand awaiting trial for less serious offences.

The hybridization should relate to making ‘indictable only’ offences hybrid.  If it includes making summary offences hybrid then this will have the opposite effect and will slow the process down since hybrid offences are treated as indictable ones until the Crown makes the election to proceed summarily.  The Law Reform Commission back in the 1980s proposed a reclassification of offences to include more summary offences based on the range of sentences normally imposed.  For the purposes of efficiencies, this makes more sense because the process is quicker if the possible penalties are less.  More should be classified as summary offences.

It is troubling that the capacity crisis in the criminal justice system is recognized yet changes to the Criminal Code continue to be made that will exacerbate these problems.  Mandatory minimum penalties slow down the criminal justice process and these are increasingly apparent in proposed Criminal Code reforms.  The recent changes made through Bill C-37 will now require two appearances before courts by impecunious offenders to avoid being jailed for non-payment of mandatory victim surcharges.   Bill C-54, which is now before Parliament, asks the courts to assume responsibilities with respect to the Not Criminally Responsible regime that are now being effectively discharged by Review Boards.   The demands on our courts are in fact increasing.  Amendments that will increase the burden on our strained criminal justice and corrections system should not be brought into effect until coherent and effective approaches are adopted that will ensure accessible, fair, and timely criminal justice.   (Emphasis Editor’s)

 The Republic (Indiana) – Mihir Zaveri and Don Thompson – AP
Judge considers barring 3,000 inmates from 2 California prisons because of airborne fungus

 The fungus is called ‘valley fever’ and comes from the soil in the San Joaquin Valley.  There have been considerable increases in the prevalence of the disease in the last ten years; in 2012 there were 18 inmate deaths over the 8,000 plus population of two prisons in the valley and the state spends $23 million per year in health costs to treat the disease.  Blacks, Filipino and medically-at-risk inmates are more vulnerable.  Advocates want 3250 inmates transferred out of harm’s way. A federal judge is deciding whether to delay for the sake of more study results or to grant the transfer.    http://www.therepublic.com/view/story/8c56d74953264cc4b3c811f9fdcf50c4/CA–Valley-Fever-Prisons

 The Washington Times – Wesley Pruden
An abundance of villains in the great immigration scam 

 Editor Emeritus Pruden offers that analysis about who wins what with the passage of the proposed immigration reform bill by the ‘Gang of Eight.’  Says Pruden: “An endless supply of poor, hungry and illiterate peasants, preferably from the Mexican interior where poverty grinds so exceedingly fine that crumbs and scraps look like Christmas dinner, is crucial to keeping the scam going for the corporate and personal elites. The illegals have fastened onto them like fleas on the belly of a blue tick hound.”  http://www.washingtontimes.com/news/2013/jun/18/pruden-abundance-villains-great-immigration-scam/#ixzz2WZlFnMFc

 Washington Post – Associated Press
Indiana woman whose ‘86 death sentence at age 16 sparked international outcry is freed

 The case of Paula Cooper sparked outrage on both sides.  She was, at age 16, the youngest person on death row, after a grisly murder and an international outcry over the death penalty.  Her release, after the sentence was commuted to 60 years in prison, comes twenty-four years later and has some wondering if justice was done while the grandson of the victim works to repeal capital punishment. http://www.washingtonpost.com/national/indiana-woman-sentenced-to-death-for-killing-at-age-15-is-released-from-prison/2013/06/17/2d3fc4f6-d76c-11e2-b418-9dfa095e125d_story.html