Democracy Gone Astray

Democracy, being a human construct, needs to be thought of as directionality rather than an object. As such, to understand it requires not so much a description of existing structures and/or other related phenomena but a declaration of intentionality.
This blog aims at creating labeled lists of published infringements of such intentionality, of points in time where democracy strays from its intended directionality. In addition to outright infringements, this blog also collects important contemporary information and/or discussions that impact our socio-political landscape.

All the posts here were published in the electronic media – main-stream as well as fringe, and maintain links to the original texts.

[NOTE: Due to changes I haven't caught on time in the blogging software, all of the 'Original Article' links were nullified between September 11, 2012 and December 11, 2012. My apologies.]

Friday, July 05, 2013

A law that won’t help offenders or their victims

Bill C-54, the Conservative government’s latest salvo in the tough-on-crime war, has passed third reading in Parliament and awaits only Senate approval and royal assent to become law. The legislation has been criticized by many with expertise in criminal law: by criminal lawyers, academics, review boards, forensic psychiatrists, criminologists, etc. But the criticism has fallen on deaf ears; criticism seems to have little effect on this government — they are right, the critics are wrong.

None of the provincial review boards who actually administer the relevant sections of the Criminal Code were consulted on the legislation. Had they been consulted, no doubt they would have made the point that the victims of crime and the mentally ill are not adversaries: this is precisely the point the Conservative government did not want to have expressed because it might undermine the photo ops that the prime minister and his minister of justice stage with victim’s right groups. In other words, Bill C-54 is about votes; it is not about public safety, still less about victim’s rights.

Bernd Walter, chairman of the British Columbia Review Board, summed it up well: “The way the whole thing has been introduced and presented is really divisive; rather than suggest that we’re all on the same page as victims and governments in terms of wanting public safety, it really pits decision-makers and treatment providers against victims, suggesting they have opposing interests, which I think is offensive.”

Incidentally, Walter went to the trouble of appearing before the House of Commons Standing Committee on Justice to present his criticism. “It was the most condescending, dismissive, mock consultation I have ever been through in 40 years in public service,” Walter said later. “It was a joke; it was insulting.”

Bill C-54 is called the “Not Criminally Responsible Reform Act” and even the title is misleading. It does not reform, or even address, the basic model for dealing with the mentally ill who commit criminal offences. The courts will continue to adjudicate the issue of sanity based on a definition derived from an old English case (M’Naghten, 1843). Reconsidering the issue of criminal responsibility in light of current understandings of mental illness might have been a productive undertaking, but Bill C-54 goes nowhere near that.

Instead it creates a new category of accused (“high risk offenders”) if there is “a substantial likelihood that the accused will use violence that could endanger the life or safety of another person.” This test posits a degree of certainty and predictability unavailable to forensic psychiatry. An accused so designated in future shall not leave a forensic hospital unescorted for any purpose, and his case may not be reviewed annually (like other NCR accused) but only every three years.

The government touts the claim that Bill C-54 requires review boards to make public safety the “paramount consideration” in making decisions (s. 672.54), but this is window-dressing since that was already the law (adumbrated in many court decisions).

So what will be the real effect of Bill C-54 be?

Like Old Testament Amos “no prophet am I, nor prophet’s son,” but I suggest three pretty obvious consequences: first, defence counsel will shy away from raising the insanity defence. Since the circumstances in which the Crown attorney can raise it are severely circumscribed, this means that accused who formerly would have been found NCR and sent to a forensic hospital will in future be convicted and sent to jail. Jails are unsafe places, with almost nothing in the way of psychiatric resources, and the net effect will be to make them more unsafe and the mentally ill who are sent there sicker.

Second, the court hearings to designate an NCR accused as a “high risk offender” will become protracted and expensive. We know this because there is a precedent — the “dangerous offender” provisions in the Criminal Code. So, if part of the motivation was to save money, Bill C-54 will have the opposite effect, costing the taxpayer more.

Third, the new legislation is a red flag for a Charter challenge. I believe it is likely that the courts will find that the legislation infringes Sections 7 and 9 of the Charter of Rights and Freedoms. But in whose interest is it to have expensive, time-consuming charter litigation dragging on through the courts?

If Bill C-54 were addressing real issues, if it actually accomplished anything for public safely, then defending it through the courts might be worthwhile.

But, as even the ostensible beneficiaries of Bill C-55, the victim’s rights groups, are about to discover, it is an exercise in chicanery; the public is being duped by a government that, on this issue at least, prefers politics to principle.

Original Article
Source: ottawacitizen.com
Author: Ian Hunter

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