Thursday November 27, 2014




Private bills used to avoid scrutiny

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I’ve written before about the problem of the federal government pushing through crime legislation as private member’s bills rather than government bills, but was not sure how big the problem was until a new report in the Globe and Mail last week.

In an article about major problems with the  Fairness for Victims Act (Bill C-479)—a bill ostensibly sponsored by MP David Sweet with the full backing of the government—the paper reports there are currently 25 private member crime bills either before Parliament or recently passed.

I really want to give the Conservatives the benefit of the doubt that they would not purposefully and cynically put important legislation like this in the hands of private members to avoid parliamentary scrutiny, but it is really difficult to believe that is not precisely what they are doing.

In fact, they have all but bragged about it. In 2013, Vic Toews, then the  public safety minister, claimed this government had passed more private members bills than any other in Canadian history.

“There are certain timelines and they move much quicker than government legislation does,” he said.

There is a good reason for that. Government bills require scrutiny to ensure they pass constitutional muster, private members’ bills do not.

This particular issue came to light because the bill in question received so little attention the wrong version of it got sent to the Senate with instructions from the government to get it passed in principle quickly and sent to committee.

The problem with the law is the same problem that led the Supreme Court to strike down another private member’s bill, the Abolition of Early Parole Act.

Whether or not you agree or disagree with the Conservative’s so-called “tough on crime” agenda, you cannot simply ignore the Charter of Rights and Freedoms.

In R. v. Whaling the Court ruled that new punishment cannot be retroactively applied to prisoners who have already been tried and sentenced.

That is such an obvious conclusion it makes it very difficult to believe that the government is doing anything other than trying to make an end run around the Constitution in order to push its agenda further than the law will allow.

Bill C-479 seeks to extend the wait time for parole eligibility after a rejection from two to five years. The original draft of the legislation did not spell out whether this would apply to existing prisoners or just new ones. At the Commons committee, Roxanne James, Scarborough MP and parlimentary secretary to the minister of public safety, noticed the oversight and proposed an amendment that specifically included current prisoners despite the
Supreme Court’s ruling in Whaling.

According to the Globe, she told the committee, “we wouldn’t see the fruits of this particular bill until many years into the future,” as if that somehow justifies trampling people’s Charter rights.

Criticism of the particular case and the government’s general approach is widespread.

“Frankly, it surprised me that something as fundamental to Canadians as their liberty interests would be dealt with through a private member’s bill,” said Howard Sapers, the ombudsman for federal prisoners.

Although this particularly bill is likely headed for the scrap heap now that awareness of it has been raised, there are 20 more waiting in the wings and, as Toews boasted last year, the Conservatives were already setting records for the number of laws they have passed in this way.

My fear is that it is going to take decades to unravel the mess they have made of the Criminal Code.

In the meantime, I think it is time to close up the loophole that allows private member’s bills from receiving the same kind of constitutional analysis government bills require.

Until now, we have operated under the mistaken belief that our elected representatives can be trusted to respect the country’s most fundamental laws. Obviously, we need to do something to prevent future governments from acting so irresponsibly.


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