Ottawa's justice agenda in 2018

By Justin Ling January 2, 20182 January 2018

Well into the second half of its mandate, the Trudeau government has a lot of work left to do.

Ottawa’s mandate letter tracker, an attempt by the government to grade its own success on the commitments it made after coming into office, reports that it has followed through on just three justice-related files: Adding gender identity as a protected grounds under the federal Human Rights Act and Criminal Code, coming up with a  legislative response to the Carter v. Canada ruling by the Supreme Court of Canada regarding physician-assisted dying, and ensuring an appointment process for Supreme Court Justices that is “transparent, inclusive and accountable to Canadians.” (Some lawyers would question whether that third point is really a victory for the government.)

As for the rest of the justice file, the government has its work cut out for it when Parliament returns in late January, and will need to put a rush on if it wants to finish up its priorities before the next election.

Here’s a quick rundown of some items to watch for in 2018.

Sitting in the Senate

Weed fight? The government’s much-scrutinized Cannabis Act, (C-45) and its sister bill, which imposes tough new penalties on driving-while-high (C-46), have cleared the House of Commons without significant change, but now face an emboldened Senate that has issued vague warnings that their study could take time. That could threaten to delay the bill’s July 2018 implementation date.

Some further study may be warranted. Many have questioned whether the broad police powers envisioned by the bill, coupled with stiff criminal penalties for infractions, could face trouble in the courts. The Canadian Bar Association has raised concerns that a limited approach to legalization that continues to rely heavily on the criminal law carries risks that would see people move “from lawful activity to serious crimes with severe penalties with little factual difference between their respective situations.” That could invite a constitutional challenge.

Criminal Code cleanup: The government’s announcement that it would clean-up the Criminal Code was met with widespread approval in the legal community. As Robichaud Law associate Jordan Gold put it: Axing these so-called “zombie laws” is a “no-brainer.

But Ottawa’s mission to clean up the Criminal Code has run into some resistance. Its first foray into the exercise (C-51) faced stiff criticism in committee, particularly as they relate to proposed amendments to Canada’s sexual assault laws, namely around disclosure of evidence from the defence.

The Criminal Lawyers’ Association came out aggressively against the bill, writing that it, as drafted, “is unconstitutional and ineffective. The CLA’s position is that the law of sexual assault needs no update. The law, properly applied, already protects complainants and witnesses in criminal trials from illegal, myth-based conduct.”

The bill imposes new requirements on defence counsel to share information on witnesses or complainants with the Crown, and limits which information can be used at trial. The bill made it through committee without major change, but has only just arrived in the Senate, which may find itself more interested in taking a scalpel to the bill.

Still in the House

The end of buggery: For more than a year now, the Liberal government has said it will repeal Section 159 of the Criminal Code, the antiquated the unconstitutional provision that originally criminalized anal sex and, until more recently, set a differential age of consent for gay men.

Though long found to be unconstitutional, the charge has nevertheless been applied to dozens of individuals across the country, some of them youth, according to an Egale report.

Repeal of the provision is taking time. As CBA National has previously reported, it originally tried by introducing Bill C-32 in November, 2016 (C-32) only to shelf it to make way for a broader Charter clean-up bill, which includes the repeal language, which it introduced in March with Bill C-39. That bill would also clean up Canada’s antiquated abortion laws and takes aim at some truly anachronistic sections, including a ban on witchcraft.

Bill C-39, however, has been stuck at first reading. While a spokesperson in House Leader Bardish Chagger’s office told CBA National that it remains a priority for the government, they could not provide a timeline for when the bill would become law, much less when it would finally come to a vote.

Fixing the bestiality law: While Ottawa has shown zero initiative in fixing Canada’s bestiaility laws, following a Supreme Court decision that conclude the Criminal Code criminalized only penetrative sex with animals — thanks to the old English definition of buggery — the opposition has taken it upon themselves.

Conservative MP Michelle Rempel introduced legislation (Bill C-388) to fix that before the House of Commons rose last week. The bill is painfully straightforward, reading simply: “In this section, bestiality means any contact by a person, for a sexual purpose, with an animal.”

Easing the tax on “broken souls”: CBA National has reported for years on the previous government’s injudicious attempts to expand the enhance the federal victim surcharge, and Wilson-Raybould may finally getting around to addressing the issue in 2018.

The bill (C-28) provides an exemption for the courts to waive the surcharge if the cost would be disproportionate or cause undue hardship. The bill, introduced in October, has yet to come to a vote.

National security overhaul: The Liberals’ much-anticipated national security legislation-slash-quash-repeal of C-51 was met with tepid support from the various players in the field when it was unveiled in June. The bill (C-59) vastly expands oversight, as promised, establishes broad new authorities for Canada’s signals intelligence agency, and peels back some of the elements of the Harper government's Terrorism Act changes.

But the government has indicated it is looking for help on improving the bill, having sent the legislation off to committee before it came to second reading in the House.

Conspicuously missing from that bill was a legislative fix for the issue of basic subscriber information. Ottawa was focused on the issue of how to let police obtain internet-users’ name and address quickly, but without skipping judicial oversight altogether. Evidently, they couldn’t find a way, and have opted to stick with the status quo for now — leavinga  situation where police say they are having difficulty obtaining court orders to obtain that basic information. We could see legislation this year address this issue again.

Legislation not yet introduced

The Navigable Waters Protection….something?: Despite promising in their platform to "review these changes, restore lost protections, and incorporate more modern safeguards" for Canada’s waterways, as part of a general plan to improve environmental regulations that were drawn down under the previous government, it’s still unclear what the government actually intends to do.

The government undertook a review, with an expert panel, and a public consultation to inform its future plans for environmental regulation and the fate of the National Energy Board, but has yet to indicate what it intends to do with that information. The file is expected to see some movement in 2018.

In the interim, the NDP have introduced dozens of pieces of legislation that would place individual rivers and streams that are no longer under the watchful eye of the federal government, back under protection of the Navigable Waters Protection Act.

The CBA’s Maritime Law Section, which responded to the online consultation questions in December, said it does not believe additional protections are needed under the Act. However it recommended that it “continue to apply to all navigable waters with respect to obstructions and prohibited activities in order to effectively protect navigation safety in Canada’s waterways.”

Sentencing reform: From its days in opposition, the Liberal Party has been critical of the tough-on-crime mindset of the previous government, vowing it would not go down the same path of harsh mandatory sentences.

But despite being critical of the Conservatives’ stiff sentencing rules for non-violent drug offences, the Liberals baked in some very harsh maximum sentences into its marijuana legalization bill — as was explored above — and have generally not touched the Criminal Code when it comes to its other drug provisions.

This past summer, Ottawa introduced a survey that asks Canadians to offer their perspectives on how the court should deal with sentencing in various cases — from a drug-addicted mother who sells narcotics to feed her kids to a brain-damaged offender — with an eye to incorporating those responses into legislation.

That legislation has failed to materialize yet, with many lawyers anxiously awaiting its eventual unveiling. 2018 may well be the year.

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