Policy & law

Those interested in policy and law reform take issue with the view attributed to Otto von Bismarck: “I have come to the conclusion that the making of laws is like the making of sausages – the less you know about the process, the more you respect the result.”  The very process through which policy challenges are addressed by law reform should contribute to respect for the result.  Laws regulate activity and can limit our liberties.  Accordingly, their development should be guided by principles and research.

A number of key questions should be considered, including:

  • What is the specific problem to be addressed (evidence, how serious)?
  • What policy, program, and/or law reform options are available to address the issue?
  • What have other countries or jurisdictions used?
  • What are the strengths and weaknesses of the major options (research/evidence)?
  • Have stakeholders and interested parties been consulted and what are their positions?
  • Are the proposed options consistent with the Charter and the constitution?
  • Are there more efficient, less costly, less intrusive ways to resolve the problem?
  • What outcome measures would indicate that the measure had been successful in addressing the problem?
  • What outcome measures would indicate that the measure had not been successful in addressing the problem?

Often Law Commissions assist in answering these questions and provide the principles and research needed to inform constructive law reform.  But the federal commissions have been shut down. Parliamentary committees can be mandated to look into policy issues and to provide advice on law reform but this occurs only rarely. Ministers can release green papers and white papers on policies and possible law reforms to engage stakeholders and interested parties but these too are disappearing.

It has become more common for Bills, particularly Private Members’ Bills, to be introduced in Parliament without prior consultation with stakeholders and interested parties. The evidence, legal principles, options, Charter assessment, impact on marginal groups, costs, effectiveness, etc. tend to be examined by some for the first time late in the process and their concerns are not addressed.  Others affected by the legislative reforms only become aware of the changes after the Bills have been passed into law.

The purpose of this section is to promote a more principle-driven, evidence-based approach to policy and law reform. It will consider both the substance of proposed law reforms and the process through which laws are made.

Are you are wondering by now ‘why would this ever matter to me?’

This section will be peppered with examples that may answer this question and probably raise many more.

                                                                                                                                 –Catherine Latimer  

A case in point: drug policy and law

A “smart justice” approach to drugs means relying on approaches supported by evidence of their ability to reduce the possible harms of drugs.  Those harms might be caused to individuals, their families, communities or others, including citizens of other countries where drug cartels compete violently to control the drug trade.

The evidence is clear that our current drug laws and policies, largely involving the use of harsh criminal laws – sometimes called criminal “prohibition” – increase, rather than reduce, those harms.

Canada began to prohibit drugs using the criminal law over a century ago. Since then, Parliament has used the criminal law to ban hundreds of substances. Most recently, Parliament enacted mandatory minimum penalties for the distribution and production of certain substances.

Despite the broadening reach of the criminal law to include more and more drugs and despite increasingly harsh criminal penalties, there is little evidence to show that this approach reduces harmful drug use. Use of illegal drugs remains widespread in Canada.  In addition, relying on criminal prohibition as the main approach to certain substances has caused much more harm than it has prevented. Prohibition hurts individual users, their families, their communities and citizens of other countries around the world.

The Canadian Drug Policy Coalition, a drug policy reform group, has identified several of the major harms that flow from criminal prohibition Smart justice supports policy and law reform that stops adding harm: it is simply not necessary to use the criminal law to respond to problematic drug use.  Other approaches, health-based, are far more likely to reduce the harms associated with drugs.  The criminal justice system is often not the best tool to use to reduce the harms of drugs in society.

Nor does opposing the use of the criminal law as the main instrument for dealing with drugs mean that one is “pro-drug” or that they “condone” drug use.   Inappropriate use of drugs can cause harm in society. But too many of the tools we have traditionally relied on to address drug issues make the drug problem worse, not better.

–Eugene Oscapella

Watch a press conference by the Smart Justice Network on Parliament Hill on February 23, 2012, concerning Bill C-10 (the Safe Streets and Communities Act) with Don Bayne, James Chadwick, David Daubney, Barry Stuart and Steve Sullivan.