STACKING THE DECK

The Tories' New Crime Law Gives The State Too Much Power

Father Raymond J. De Souza, National Post

More crimes, harsher jail sentences, easier prosecutions -- all of it
adds up to more innocent men in jail longer. Of course that's not the
intent, but it surely will be the case. And strangely enough, it
doesn't much bother those whom it should -- conservatives skeptical
of state power.

Last week, the federal government's crime bill became law, which adds
new gun crimes, increases mandatory minimum sentences for crimes
committed with firearms, reverses the onus for bail in firearms
crimes, denies certain defences for impaired driving charges, and
creates a new presumption in favour of dangerous-offender
designations. It fulfills one of the major planks in the Harper
government's election platform, and establishes their "law and order"
credentials with more conservative voters.

All of which is presented as punishing malefactors and keeping the
citizenry safe. That may be true in most cases, but nevertheless
manifests a confidence that the new tools given to police and
prosecutors will be used with fairness and justice. Where does that
robust confidence come from?

The conservative temperament is suspicious of state coercion and
bureaucratic power, and nowhere is the state's power more severe than
in apprehension and imprisonment. Yet the same people who would raise
alarms over increasing the power of school boards, expanding the
scope of environmental officers, or giving regulators new powers seem
quite serene when it comes to giving police and crown attorneys more power.

Is there some special immunity enjoyed by those in criminal justice
that prevents them from abusing their power, or simply executing it
in an incompetent fashion? In recent years, Canadians have witnessed
a veritable parade of the wrongfully convicted, each of whom was
simply overwhelmed by the sheer power of the prosecutorial state.
Police officers and crown prosecutors are, in virtue of their daily
exposure to those who abuse their liberties, not particularly
sensitive to questions of individual liberty or procedural fairness.
That's why we set boundaries around the fearsome power they have, and
why friends of liberty ought to be concerned when those boundaries
are made less constricting.

For example, take the new reverse-onus provisions in relation to gun
crimes. The new law puts the onus on the accused charged with using a
gun in a serious crime to demonstrate why he should be entitled to
bail. The default position is that he should be in custody awaiting
trial. In principle, does it not offend against liberty that the
default position should be incarceration? And in practice, do we not
already know how this will work out? Those who cannot afford decent
representation will be denied bail in such cases. It is always the
way -- the poor are less able to resist the excesses of the police
and prosecutors --but should this be extended even to pre-trial custody?

Another example is the now statutory prohibition of the "evidence to
the contrary" defence for impaired driving. To date, one could
challenge both the proper functioning of the breathalyser, or present
"evidence to the contrary" that the alcohol consumed was unlikely to
put the accused over the limit. The so-called "two-beer defence" --
named because witnesses would testify that too little alcohol was
consumed to render someone impaired -- is now prohibited. No doubt,
convictions will be more easily achieved now that a popular defence
has been outlawed. Can anyone doubt that at least a few people for
whom the defence would have been a legitimate explanation will now be
convicted?

The passage of the Conservative crime bill came at the same time as
the Pew Center's report on American criminal justice was published.
The United States now imprisons 2.3 million people, more than Russia
and China combined, even given the much lower population. In the land
of the free, it is a brave man indeed who resists the criminal
justice system -- with long mandatory minimum sentences, a war of
drugs run amok, three-strikes laws and politically-motivated district
attorneys, the excesses of the prosecutorial state are manifest for
all to see. Imprisoning more than 1% of its adult population can be
the result of only two causes -- either Americans are more criminally
inclined than any other people, or the law-and-order agenda brings
far more order than it does law, at least traditionally understood as
the practical reality of a presumption of innocence, due process and
a fair trial.

Since the introduction of a raft of mandatory minimums in the 1990s
under the Liberal government, Canada has been headed slowly in the
American direction. One perhaps can understand that liberals,
believing in the beneficent state and the competence of bureaucracy
to achieve social ends, might be inclined to further empower the
prosecutorial state. But isn't it counter-intuitive for conservatives
to do the same?