IT'S A 'MYTH' CANADA IS SOFT ON CRIME

Critics Haven't Made Convincing Case, Chief Justice Says

TORONTO - It is a myth that Canadian courts are soft on crime and that
the Charter of Rights is responsible for criminals escaping conviction
or receiving light jail terms, says Canada's chief justice, Beverley
McLachlin.

In a speech to mark the Charter's 25th anniversary, Chief Justice
McLachlin told a legal conference yesterday that the constitutional
bill of rights has perhaps become a "kicking horse" for critics who
believe that courts, citing rights violations, treat criminals too
leniently.

"The most persistent Charter myth is that the Charter has put law,
order and public safety at risk by making it harder to convict felons
and softening punishment," Chief Justice McLachlin told hundreds of
legal experts.

"I don't think a convincing case can be made that we're soft on
crime."

She cited a survey from 1979, three years before the Charter was
adopted, in which seven out of 10 Canadians believed the courts did
not treat criminals harshly enough.

She also noted the country's incarceration rate remains high by world
standards, with Canada recently ranking fifth of 15 countries.

Moreover, conviction rates fluctuate from year to year, which suggests
they have nothing to do with the Charter of Rights, she said.

Her assessment of the judiciary's treatment of criminals conflicts
with that of her predecessor, Antonio Lamer, who said recently that
today's judges don't hand down stiff enough sentences. The
Conservative government has also complained that judges are too
lenient and, to that end, has introduced legislation for mandatory
minimum jail terms for a variety of gun-related crimes.

Chief Justice McLachlin praised the charter as a document that "makes
everyone a little more comfortable" and "has allowed Canada to stand
tall in the world."

Yet, a survey taken earlier this year showed Canadians do not have a
solid understanding of the charter, with just under half of those
surveyed saying they did not know that governments have the power to
override certain court rulings, she noted.

To foster better awareness, the Charter of Rights should be taught in
schools, Chief Justice McLachlin said.

Louise Arbour, the United Nations chief commissioner for human rights,
told the conference the Charter of Rights has not lived up to its
potential when it comes to social and economic rights, such as
protecting people from poverty.

"International monitoring bodies have often criticized Canada on its
economic, social and cultural rights record and I truly believe that
the recognition of those rights is the new frontier in charter
protection," she said.

Ms. Arbour, a former Supreme Court judge, also lamented that the
charter is increasingly out of reach for many Canadians because they
cannot afford to go to court. It is therefore "unfortunate" that the
Conservative government recently cancelled the Court Challenges
Program, which helped fund litigants in challenging government laws on
Charter grounds.

The Charter of Rights, signed on April 17, 1982, as part of the
repatriated Constitution, gave judges the power to not merely
interpret laws, but to strike them down if they were found to violate
any of the established rights.

They include freedom of religion, expression and association, the
legal right to life, liberty and security of the person, and the right
against unreasonable search and seizure.

Equality guarantees, including freedom from discrimination based on
age, sex, race, or disability, came into effect in 1985.

Former prime minister Jean Chretien, former Saskatchewan premier Roy
Romanow and Ontario's chief justice, Roy McMurtry -- three men who
were responsible for hammering out a constitutional deal that was
endorsed by all provinces except Quebec -- relived an intense night of
negotiating that went on behind closed doors in an Ottawa kitchen in
November 1981.

The deal-maker to what has been dubbed the "kitchen accord" was adding
the notwithstanding clause to the charter as a constitutional safety
valve for politicians to override court rulings.

Mr. Romanow, who was Saskatchewan's justice minister at the time, told
the conference he believes that the controversial and seldom-used
compromise clause is a valuable check on the judiciary in light of it
endorsing expansive rights, such as private health care.

Mr. Chretien, who was federal justice minister when the deal was
signed, refused to be drawn into a debate about the notwithstanding
clause, saying "you can debate it until you die" and it won't make a
difference because it is entrenched in the Constitution.

Although there is an amending formula, history has shown making
changes is virtually impossible because it requires the consent of
seven of 10 provinces with more than 50 per cent of the population.