RELIEF AS CONTROVERSIAL BILLS DIE

Prorogation Means the End of Some Long-Awaited Legislation

With the suspension of Parliament, the good dies with the bad. Some
legal observers are lamenting the loss of some much-anticipated
legislation.

Others are breathing sighs of relief, however, that among the dead
bills are many deserving casualties.

Prime Minister Stephen Harper's government has prorogued Parliament
with 37 bills yet to be passed, more than a dozen of which are
criminal justice laws introduced as part of the Tories' tough-on-crime
agenda.

In criminal justice circles, opposition to those bills was nearly
universal, says William Trudell, chairman of the Canadian Council of
Criminal Defence Lawyers.

"From Crown counsel to police officers to corrections workers to
social workers to judges to defence counsel, [all] feel that these
tough-on-crime measures are sowing the seeds for the implosion of the
system," Trudell says.

Suspension of the House of Commons means all government-sponsored
bills short of Royal assent die on the order paper.

The government may reintroduce outstanding bills in the next
legislative session, but those at various stages in the Senate must
return to the beginning of the process in the upper chamber.

The Tories said they would reintroduce their consumer safety bill and
anti-drug law in their original form. Both pieces of legislation
resulted in an impasse between the government and the Senate over
proposed amendments. But the future of many other bills remains uncertain.

Even if the Harper government reintroduces them all, justice officials
and observers hope to see some sober second thought, Trudell says.

"The fact that they get reintroduced means people will take a second
look at them."

While the bills sent the message to the electorate that the government
was cracking down on crime, the proposals don't reflect the realities
of the criminal justice system, Trudell argues.

Bills such as the one to repeal the faint-hope clause merely exploited
misconceptions about crime and punishment in Canada, he says. "That
was not a bill that was necessary."

He notes anecdotal evidence was promoted that murderers were walking
the streets, an assertion that ignored the multi-stage process
involving screening by a judge, jury, and the parole board before
early release is granted under a faint-hope application.

Meanwhile, those members of Parliament who knew the bills, while
effective at bolstering punishments, did little to actually address
crime, censored themselves for fear of being branded soft on
criminals, Trudell says.

"When the new session comes in, we can maybe throw that out the window
right away," he says. "You can't sit on your hands just because you're
afraid of getting beat at the polls."

As a result, he's calling for a more principled examination of justice
measures. "Surely, the politicization of the criminal justice system
has to stop." A common complaint about most of Harper's crime bills is
the restriction of judicial discretion, another reason prorogation has
prompted some palpable relief, according to Trudell.

Among the scuttled legislation is the proposed end to conditional
sentences for a number of crimes, including breaking and entering,
arson, and theft over $5,000.

Also dead is the bill proposing mandatory minimum sentences for drug
crimes.

"Good heavens. Mandatory minimums don't work," Trudell says. "The
reverberations through the system, they make everyone's jobs more difficult."

Crown prosecutors would have had less leeway in recommending
appropriate punishments, and judges would have lost discretion in
handing down sentences, he says.

Before the parliamentary session came to a halt, however, the Senate
passed the government's organized-crime legislation as well as the
bill ending two-for-one credit for pretrial custody, which garnered
widespread criticism.

Opponents said government claims that inmates often deliberately delay
their own proceedings in order to earn double credit are simply not
true.

"We're increasing the lines to jails, and now they're talking about
bigger jails," Trudell says.

Meanwhile, Toronto lawyer Paul Alexander told a House of Commons
committee last year that reducing pretrial credit would worsen prison
conditions.

"What I will say about this bill is that at its best, it is misguided;
at its worst, it is cynical and cruel," Alexander said. "This is a
piece of legislation designed to solve a problem which, to my
knowledge, does not exist anywhere other than the popular
imagination."

On the other hand, along with controversial bills, prorogation also
nullified legislation that had widespread support.

Bill C-27, also known as the anti-spam bill, included measures to curb
electronic identity theft, phishing scams, and the spread of malicious
spyware.

"The bill was obviously an important bill," says Barry Sookman, an
intellectual property lawyer with McCarthy Tetrault LLP. "It's
regrettable that it died."

Sookman had previously voiced concerns on behalf of the business
community that the bill as written could prohibit content providers
from installing small applications or HTML code required to surf a web
site unless first asking for consent.

But Sookman says most of his concerns were addressed at a House of
Commons committee. With prorogation, however, he says Canada still
lacks the legislation needed to bring it in line with other countries.

"Hopefully, it's just a bump in the road and [the bill] will be
brought back with the remaining problems fixed."

Meanwhile, the chorus taking a stand against the most recent
prorogation grows.

Many Tory opponents, as well as some of the country's foremost
constitutional experts, have denounced the suspension of Parliament.

A Facebook page of angry Canadians has a steadily building membership,
and protests are scheduled for several cities, including Toronto,
later this month.