When I first saw the headline on CBC’s news feed, I thought it was a joke.
“Crimes on the moon could soon be added to Canada’s criminal code”
I looked at the legislation myself. CBC was telling the truth. Division 18, Part 5, Section 296 of Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures, extends the jurisdiction of Canada’s criminal code (for Canadian citizens to “the surface of the moon”.
I’ll begin by saying there is probably some good bureaucratic, if obscure, reason for passing this legislation. I’m willing to accept the fact that there is likely more it than a prolonged exposure to Julie Payette causing concerns about potential behavior of Canada’s astronauts but I have two issues with this provision in the so-called Budget Bill:
· Priorities
· Process
Let’s begin with priorities.
Writing, debating and passing legislation takes time and effort. Time on the parliamentary schedule is scarce. Governments must make choices about what to do first. Off all the things in all the earth (and beyond) that the government can prioritize, is extending Canadian law to the surface of the moon a top priority? Even if some Canadian gets up there in the next decade or so, what is there to steal? Lots of Swiss Cheese? Or is the government afraid our astronaut will assault the man on the moon?
On my same visit to the CBC news site, I saw another headline. “Tax returns stuck in limbo for 50,000 teachers who applied for a school-supply tax credit.” In response to teachers being forced to deliver a lot of classes on-line, the government decided to increase the amount of the Eligible Educator School Supply Tax Credit and make things such as netcams, headphones and microphones for home computers eligible. Teachers forced to pay, out of the own pocket, for the computer equipment necessary to deliver on-line classes can get a modest break on their taxes. The government announced it was going to implement this measure on December 14, 2021 – 641 days after schools in Canada first starting locking down because of COVID on March 14, 2020. The government introduced Bill C-8 to implement the change to the tax credit the day after announcing it – but then waited 50 days before bringing the legislation back for 2nd reading. It still not passed – hanging up the income tax returns for every teacher who claimed the credit. No processing, no refunds. This is not an opposition-caused delay. The NDP and the Bloc supported the legislation. The Conservatives opposed but have not obstructed. The government owns this mess completely. They decided to do something, but moved like zombie sleepwalkers on it.
The man on the moon is getting a higher priority than Canada’s teachers.
Let’s look at another question of the government’s legislative priorities. The Liberal government has made a big deal about getting rid of mandatory minimum sentences for drug trafficking and crimes involving the use of firearms. They say it is important. I’m willing to bet my own income tax refund that the man on the man-on-the-moon law will be passed before the legislation on mandatory minimum sentences.
Let’s look at the history on the sentencing law.
Something the government claims is important: Moving like a snail
The mandatory minimum sentences on drug trafficking offences were created by Bill C-10 (The Safe Streets and Communities Act) passed by Parliament in 2012. When the legislation was introduced, the Liberal Justice critic described it as:
An act to divide Canadians and keep the Conservative base happy; an act to provide prisoners for empty prisons; an act to fill prisons in order to build new ones; an act to take more aboriginals off reserves and put them into prisons; an act to provide a Conservative comprehensive affordable housing strategy; an act to make prisons the largest mental health institutions in Canada; and, one I particularly like, an act to stimulate the penal sector.
The rhetoric was a little over the top for two reasons. First, the mandatory sentences had been proposed in three earlier bills introduced by the Harper government. All died on the order paper BUT the Liberals had supported the same provisions in the earlier versions of the legislation. Only on the fourth go-round did the Liberal decide the provisions were racist and evil. Second, the legislation did not really have much real effect in sentencing. The Harper government had gotten “tough” on drug trafficking by setting mandatory minimum sentences at a level consistent with what people were already being sentenced by the courts. The result was that a relatively small number of individuals who would otherwise have been treated more leniently ended up receiving the mandatory minimum but, in aggregate, change was modest. In the last full year before the legislative change, drug traffickers received a mean sentence of 343 days of incarceration. In the first full year after the legislative change, this increased to 362 days – an increase of 19 days or 5.5 days. Noticeable, but not earthshattering. (For the definitive treatment of this and other “tough on crime” legislation passed by the Harper governments, click here.)
Given the (eventual) hysterical nature of the Liberal opposition to Bill C-10, one can be forgiven for expecting that striking down these mandatory minimum sentences would a high priority. After all, legislation designed to “take more aboriginals off reserves and put them into prisons” should be abolished with some sense of urgency. Right?
If you believed this would happen, you would be mistaken.
The Trudeau Liberals were sworn in as government on November 4, 2015. Legislation to abolish the mandatory minimum sentences was first introduced on February 18, 2021 – 1,933 days later. After the introduction of the legislation, nothing happened. It didn’t even get to second reading before dying on the order paper when the 2021 election was called in the fall. So much for urgency.
In the 2021 election, the Liberal platform contained weirdly revealing language on this issue. Liberals bragged they had “Introduced Bill C-22 which reforms mandatory minimum sentences and addresses systemic discrimination and overrepresentation in the criminal justice system.” They promised to “Re-introduce Bill C-22 which reforms mandatory minimum sentences, within the first 100 days.” Nowhere did they mention actually doing anything like, you know, passing the bill. On December 7, 2021 the Liberals reintroduced the legislation – proclaiming in a press release that it was “Rooting out Systematic Racism is Key to a fair and effective justice system”. Since then, of course, not much has happened.
Personally, I don’t think the mandatory sentences for drug trafficking imposed by the Harper government are racist. I don’t think they do much of anything, for good or evil. Imposing the mandatory minimum sentences at the level they were set at didn’t do much to increase incarceration and abolishing them won’t do much to reduce incarceration. It’s been a time-wasting exercise in virtue signally and political play-acting by both Conservatives and Liberals. I don’t really care one way or the other if, or when, these particular mandatory minimums get abolished. But I am not the one saying these provisions are systematically racist provisions. The Liberals are the ones making this claim. If they believe it, they should have gotten off their butts to do something about it. If they don’t, they should stop wasting time with political play acting and do something useful. Instead, they give a higher priority to giving the police the power to arrest the man (or woman) on the moon.
Bad Process and Broken Promises
Government budgets these days involve a host of major and minor tax changes that require legislation to implement. Until these get passed, they are not law - ask the 50,000 teachers waiting for their income tax refunds about this. These changes are usually put into a single Budget Bill. This is what Bill C-19 is.
Budget bills have two interesting features. First, the government gives them priority in the legislative process. They usually move along quicker than other legislation (this is why I predict the man-on-the-moon legislation will pass before the mandatory sentencing law). Second, because budget bills involve money, votes are categorized as confidence votes. If one is defeated, it means Parliament has lost confidence in the government. This almost always triggers an election. This is particularly important in minority Parliaments. Opposition parties must decide whether to risk triggering an election by opposing the Budget Bill. In the current Parliament, the NDP has agreed to support – sight unseen – the Liberal government’s confidence bills until 2025. This creates a huge loophole for the Liberals. If they attach legislation to a Budget Bill, the NDP has guaranteed passage.
The Harper government was the first to aggressively take advantage of the benefits of jamming all manner of non-budget related legislation into Budget Bills. These were termed Omnibus Budget Bills. In addition to expediting and ensuring passage, the size and complexity of these bills allows the government to hide stuff. Typically, many of the non-budget related provisions crammed into the Omnibus Budget Bill is routine, boring, “housekeeping” legislation, but the sheer volume of it allows the government to hide what it wants to hide.
The Harper government’s cynical use of Omnibus Budget Bills helped spark the Idle No More movement in 2012. Hidden in a budget bill (C-45) were changes to the Indian Act, the Navigable Waters Act and the Environmental Assessment Act. The perception that the government was trying to pull a fast one by slipping these changes through in a Budget Bill was as important to the protests as was the actual substance of the legislation.
Naturally, in opposition, the Liberals opposed Omnibus Budget Bills. Terrible things. Undemocratic. Sleazy. No criticism was too harsh. In their 2015 election platform, the Trudeau Liberals solemnly said:
We will not resort to legislative tricks to avoid scrutiny.
Stephen Harper has used prorogation to avoid difficult political circumstances. We will not. Stephen Harper has also used omnibus bills to prevent Parliament from properly reviewing and debating his proposals. We will change the House of Commons Standing Orders to bring an end to this undemocratic practice.
Yeah, right. If you believe the Liberals kept their word on this one, I’ve got a bridge you might like to buy. Bill C-19, the current Budget Bill, is 464 pages long. It has 502 sections and three annexes. The summary alone is 9 pages long. I did a quick scan. Among the provisions that appear to have nothing (NOTHING!) to do with budget implementation are:
· Repealing the Safe Drinking Water for First Nations Act;
· Changing the Composition of the board of the Canadian Deposit Insurance Corporation;
· Allowing trade unions to file global safeguard complaints under trade legislation;
· Legislation that “modernizes” (what ever that means coming from this “post-modern” government) corporate governance communications of financial institutions;
· Changing the compensation for senators in leadership positions;
· Increasing the Commissioner of Competition’s investigative powers;
· Extending copyright protection for authors from 50 years after their death to 70 years (my unborn grandchildren are thanking Justin Trudeau);
· Changing patent legislation in some murky way;
· Extending the Criminal Code to the surface of the moon (it just occurred to me – most science fiction writers say that moon colonies will be underground. Are these going to be lawless?);
· Restricting use of detention in “dry cells” when a prison inmate is suspected of hiding contraband (usually drugs) within the nooks and crannies of their body;
· Creating a criminal code offence for making antisemitic or holocaust denial statements anywhere except in private conversations;
· Changing immigration rules for granting permanent residency status;
· Allowing for forfeiture of assets of “corrupt foreign officials”.
There’s probably more that I missed. Some of these provisions might be good. Some might be bad. Some might be irrelevant. Most will never be noticed, examined or debated. Such is the nature of Omnibus Budget Bills. It takes something as flat-out weird as the man-on-the-moon provision to attract even limited media attention.
The S**t Provision in Bill C-19
Because I am interested in things criminal justice related, my eye was drawn to Section 299 of Bill C-19. This deleted Section 51 of the Correctional and Conditional Release Act and replaced it with:
Detention in dry cell
51 (1) If the institutional head is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband or is carrying contraband in their rectum, the institutional head may authorize in writing the detention of the inmate in a cell without plumbing fixtures on the expectation that the contraband will be expelled.
Visits by registered health care professional
(2) An inmate detained under subsection (1) must be visited at least once every day by a registered health care professional.
Use of X-ray
(3) If the institutional head is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband or is carrying contraband in a body cavity, the institutional head may authorize in writing the use of an X-ray machine by a qualified X-ray technician to find the contraband, if the consent of the inmate and of a qualified medical practitioner is obtained.
Section 51 of this legislation deals, legislatively, with the practice of some prison inmates to hide drugs and other contraband by either swallowing it or stuffing it into a body cavity. Section 51 originally gave prison officials the power to either examine the prisoner using an X-ray or put them in a “dry cell” (no plumbing) and wait for the workings of the human digestive system to reveal the secrets hidden in the inmate’s body.
In 2019, the Liberal government passed legislation that eliminated the possibility of X-rays and provided for some medical monitoring of an inmate being held in a dry cell. Nothing wrong with the second provision – the process of expelling a condom filled with drugs can be hazardous. However, the 2019 provisions governing these activities authorized putting the inmate into a dry cell if it was suspected contraband was being hidden in a “body cavity”.
News flash for the government. A woman’s vagina is a body cavity. If something is hidden in that particular body cavity, it is not expelled by the natural digestive process of the body. I’m wondering how long some poor woman had to spent in a cell without plumbing before the government figured that one out.
Section 299 of Bill C-18 represents a fix to the incompetent 2019 legislative drafting. It changes “body cavity” to “rectum” as a criterion for putting an inmate into a dry cell. It also brings back X-rays, but makes submitting to one voluntary. I’m not exactly sure how that will work; For those actually hiding drugs, I guess it will depend on how long a female inmate is willing to endure the discomfort of having drugs in her vagina and the degradation of close monitoring before she voluntarily consents to the X-ray. For those wrongfully suspected, it does allow for a way to prove their innocence. But, whatever the merits of the legislation and the need to fix past Liberal government incompetence in legislative drafting, inclusion of Section 299 makes a mockery of the Liberal promise to end the “undemocratic practice” (their words) of Omnibus Budget Bills - as does inclusion of legislation extending the Criminal Code to the surface of the moon.
Thanks for reading. In Friday’s column, we’ll look at the donkey what was saved from execution because a priest gave a character reference. If you want to get all of my twice-weekly posts, please subscribe. The link is below. No Charge, no obligation -and I won’t share your e-mail address. Feel free to share today’s post.