Getting Defensive

Calgary is a tough-on-crime city, and increasingly both the provincial and federal governments are pushing for tougher legislation and longer sentences for criminals. But defense lawyers are coming out against many of these measures, not just to keep their clients out of jail, but to defend your rights and the justice system itself.

If you think entering the voting booth is one of the only ways to protect your rights and freedoms, David Chow, a Calgary defense lawyer, says you have an unlikely ally in this fight.

“There is only one group that consistently protects the rights of citizens on a daily basis, and that is the criminal,” he says.

Chow’s point, while provocative, is grounded in the idea that, throughout history, courtroom battles have hammered out our notions of equality and determined the extent to which government can override our rights and freedoms.

A strip of bright yellow crime scene tape — Police Line Do Not Cross — draped across his office chair offers metaphoric flair as Chow passionately explains that Calgary defense lawyers are concerned by what they see as a recent shift in the courts. They point to a tough-on-crime agenda from both the provincial and federal conservatives, which they see as little more than lowest-common-denominator politicking. What’s worse, many of them believe cornerstone legal concepts such as the presumption of innocence and having cases judged on their individual merits are being abandoned in favour of putting more people behind bars.

“The pieces are being put in place to derogate Charter rights, and to further limit civil liberties,” says Chow about his concerns with changes made by the Harper government.

Also out there ensuring our civil liberties are grandmothers — or, more specifically, one Calgary grandmother.

Last year, Patricia Thomson answered a knock at her door and was told by police that officials were taking control of her condo. Although she was allowed to continue living there, she no longer had the right to sell it, or even to change any of the decor. The 75-year-old wasn’t charged with a crime, and the condo wasn’t a grow op, or being used for other nefarious purposes that might arguably justify the seizure. The reason for the police action? The condo’s address had been included in documents relating to a fraud investigation involving Thomson’s son.

What made the seizure possible was the newly enacted Alberta Victims Restitution and Compensation Payment Act that allows police to seize property if they suspect it’s connected to crime, regardless of whether the owner knew that they were involved and before a conviction is made.

Thomson went to court to appeal. Michael Bates can’t help but shake his head as he retells the details of the case from across the boardroom of his Calgary office. Bates, who, along with his co-council, Karen Molle, represented Thomson, says it wasn’t until the case got before a judge that things changed.

The judge hearing the case, referring to the seizure of Thomson’s home, asked what prevented the same thing from happening to him. A momentary silence cloaked the courtroom as government lawyers seemed to have no answer and then begrudgingly admitted that, really, nothing was stopping it from happening to anyone.

In other words, a piece of tough-on-crime legislation meant to be a financial deterrent for criminals was actually undermining everyone’s rights by presuming guilt.

The judge determined the Crown had gone on a fishing expedition and didn’t have grounds for seizure. The judge also ordered the Crown to pay a portion of Thomson’s $70,000 in legal fees.

While it would be easy to dismiss defense council’s concerns over undermining rights by presuming guilt as bordering on fanciful conspiracy theory, even Federal Justice Minister Rob Nicholson has voiced concerns about the ineffectiveness of tough-on-crime rewrites of the Criminal Code, including the popular increase to mandatory minimum sentences on certain crimes.

At least, he voiced his concerns back in 1988. At the time, Nicholson vice-chaired a parliamentary committee that advised the Mulroney Progressive Conservative government to avoid mandatory minimums because they did little more than swell prison populations, and showed no effect on lowering crime when implemented in the U.S.

This finding that mandatory minimums had little, if any, effect on recidivism or crime rate more generally was echoed by the Canadian Parliamentary Information and Research Service in 2006.

Despite this research, the Harper government has introduced mandatory minimum sentences for many drug and gun crimes, including Bill S-10, currently before the Senate, which creates mandatory minimum sentences for production and trafficking of marijuana.

While mandatory minimums might not affect criminal behaviour, it is clear they do affect the voting public. An Angus Reid poll in January 2010 revealed 65 percent of Canadians had a moderate or strong feeling that mandatory minimums send a strong message to criminals. That perception, rather than any actual effect on crime, seems to be behind these changes in legislation. While it would be more responsible for legislators to point out that crime rates have been on a decline since 1991, any public emotion, whether it’s based on evidence or not, is likely too good to pass up for a minority government looking for an easy way to score points.

Bates defends not only the accused and their mothers in Calgary courts, but also plays a role in criminal defense on the national stage. This past year, he came face to face with the federal government’s spinning of the public’s perception of the legal system. He collaborated on a Canadian Bar Association submission questioning the Orwellian-titled Truth in Sentencing Act, which limits time-served credits for those held in custody prior to their conviction.

In the past, judges frequently gave two-to-one and even three-to-one credit for time served for those awaiting trial, largely due to the conditions of the remand centres where the not-yet-convicted or the “technically innocent,” who do not get bail,  are detained prior to sentencing. The new legislation, which came into effect in February, limits judges to crediting only up to 1.5-to-one, and then only with a written explanation of the reasoning.

In explaining the move, the Justice Minister’s press release tapped the public’s demand for a tightening of the system. But the same press release also stated the public believed sentences were more lenient than they actually were.

The old credit system had a number of problems including that some critics felt it encouraged the guilty to try to prolong their trials in an effort to get out of jail as early as possible. The government could have eliminated the problem by educating the public about the realities of sentencing, and improving either the conditions and space available in remand centres or increasing the speed with which trials are conducted. But none of these would have allowed the government to give the appearance of swooping in and cleaning things up, nor would they have played well with the coveted donut-shop voting block.

The new law is one of seven tough-on-crime changes coming out of Ottawa since Prime Minister Stephen Harper’s government was elected in 2006. And critics of the Truth in Sentencing Act, including the John Howard Society, estimate it alone could cost taxpayers between $8 and $10 billion by 2015 — a gun registry-esque boondoggle considering the comparatively reasonable $89 million the federal government originally allocated in the budget to cover the costs of the lengthier prison stays. This budgetary increase is also occurring at a time when other federal programs are being cut to the bone. But, despite these facts, the opposition barely questioned the bill in parliament.

While it may appear these changes are being pushed through by the Harper government, the fact is they have been brewing for years.

In his 2000 book, Getting Away With Murder: The Canadian Criminal Justice System, David Paciocco, a one-time Crown prosecutor and defense attorney, describes how a crisis of public confidence in the courts during the 1970s and ’80s led to Canadians questioning the quality of their justice system. That questioning is likely at the root of the legal changes the courts are currently experiencing.

“Law reform comes to be inspired by moral panic and political expedience, regardless of the damage it can do to the fragile structure of the criminal [justice] system and the cruelty it can produce,“ Paciocco writes. “A system of criminal justice without credibility can destroy itself in a desperate grasp for acceptance. In the process, it can needlessly destroy, or disproportionately damage, the lives of those who come into contact with it.”

Defense lawyers I talked to worry the Canadian system is getting too close to that line.

Early on in his legal career, Olympic boxer-turned-lawyer Willie deWit was mentored by the late Milt Harradence who, as leader of the Alberta Progressive Conservative Party, is credited with helping break Social Credit’s control of the legislature in the 1960s. Harradence insisted the criminal justice system had to operate with integrity and that individual liberty is paramount. It seems odd that today’s Conservatives, provincial and federal, are the ones turning back the clock on work of Harradence and other libertarian-minded right-wingers, but the irony isn’t lost on deWit.

He points to the outcry when criminals seem to get away with a crime because their rights have been violated. Instead of being upset that the police have violated someone’s rights, which ultimately harms all of us, they get mad at the criminal and their lawyer who got them off on a “technicality.” deWit sees this as a fundamental misunderstanding of the rights enshrined in the Charter of Rights and Freedoms.

“The basis of [the Charter] is that we believe the people have certain rights, and you can’t sidestep that when you want to,” he says. “[Rights] have to be enforced at all times and if the police are not doing that, then there has to be a penalty. Otherwise, you don’t have a rule by law; you have rule-by-whatever-works-at-the-time.” 

From deWit’s point of view, cutting people’s individual rights and their power in our legal system doesn’t make for a safer society, but rather a less-just one.

Defense lawyer Tim Foster sees specifically how get-tough-on-crime changes to the justice system have very little to do with the actual concept of justice.

“All that laws like mandatory minimums do is give a huge advantage to the Crown,” he says. “Mandatory minimums raise the stakes considerably for the accused at trial. There is always an incentive for the accused to plead guilty to a lesser charge to avoid being sentenced to a much greater mandatory minimum.”

What’s surprising is the apathy of the general public toward these changes. Most of us don’t envision a time when our own rights might need to be protected from an unjust legal system.

In his book, The Culture of Fear: Why Americans are Afraid of the Wrong Things, Barry Glassner claims playing off people’s anxieties and passing laws, regardless of the effectiveness or need, has less to do with crime and more to do with politics. It provides an easy way for politicians to be seen as doing something. Ultimately, it’s far quicker and easier than addressing real social issues behind crime such as poverty and literacy.

“It’s a very easy sell,” says Bates of tapping into fear to promote legislation. “It is easy to sell anything that you’re doing [by saying] you’re doing it to hurt a criminal. And if people don’t dig any deeper than that, then it’s just so easy to pass laws.” However, Bates adds, many of these laws have little to do with making you safer and lots to do with vote-grabbing.

“The one example that I think shows the point is when [the province] passed legislation [in June 2009], and made amendments to specifically outlaw fortified gangster cars, and called them ‘roving death machines’,” Bates says with a laugh. “That’s what they were saying in the mainstream media. And then, in the same interview, the chief of police is saying that they’ve never actually seen one in Alberta, ‘but we know they’re out there. So we just made you really safe by taking this legislative step.’”

In fact, Bates says, the province’s legislation was aimed at making voters feel gangs were a larger threat than they are and making it appear the government had done something about this rampant crime.

As the son of an RCMP officer, self-described right-winger and occasional rodeo bull rider Greg Dunn is in many ways the embodiment of conservative Calgary values. He is also a defense lawyer. He can live with the jabs about defending creeps and crooks, because he says he sees questioning government and, by extension, the police, as an act of true-blue-conservatism, especially in law-and-order-loving Calgary.

“Politicians and bureaucrats are getting involved in the justice system and amending the way the justice system works,” Dunn says. “But they don’t really understand the nature and working of the system. Defense council is here to preserve the freedom of the citizens and act as a check on police power — and that’s why there are so many conservatives doing the job.”

Our justice system has evolved over a millennia or two as a forum to keep the powerful in check, protect minorities from majorities and ultimately to establish balance between punishment and the crime that was committed. Its most powerful concept is that an individual is innocent, and it’s up to the prosecution to prove otherwise, and on this point the pendulum is swinging dangerously away from the centre.

“I just see how the government is so big and impersonal and can trample the rights of the individual, and I try to stop that,” says Foster about how he sees his role. “We don’t like big government in Alberta, but we’re hang-’em-high-and-throw-away-the-key in terms of justice issues.”

That adherence to hang ’em high is likely what makes it easy to dismiss the defense attorneys’ concerns because, really, why should we care if their jobs are tougher if it means more criminals are being locked up, and we can all feel safe?

Picking up on that rhetorical question, Bates’ answer is concise: “The problem is that, when you do become apathetic, there’s that clichéd slippery slope — things slowly start to shift if you don’t speak up; it shifts too far until it gets to a point and you ask, ‘How did we get here?’”

The hope is that, when you are asking that question, you’re not having to defend yourself in court.