Canada is using online outrage to make dangerous changes to the criminal code
Almost a year ago, Prime Minister Trudeau and his Minister of Justice took to Twitter to undermine the Canadian public’s faith in our own legal system.
While the public can be emotionally and politically rallied to support changes to the criminal code when they are convinced a specific verdict was wrong, it is the job of lawyers and journalists to help the public understand what those changes will mean.
In a time when public distrust towards lawyers and the legal system is palpable, the allure of hashtag activism gives people a sense of participation in our justice system without concern for research or consequences.
Most citizens don’t worry about the resulting legal changes from the ensuing outrage because most people don’t expect to find themselves facing criminal charges in a court of law. Especially if they are innocent.
Indeed, by the time the legal changes are made most people have forgotten the original cause or source of outrage.
In the wake of the acquittal of Gerald Stanley at the beginning of 2018, the Canadian public was told, by our own Justice Minister, that peremptory jury challenges resulted in racism against indigenous people.
We were told Stanley was wrongfully acquitted because the jury was all white. As a result, most Canadians support a new bill that will prevent an accused from reshaping a randomly selected jury.
But the public is being misled.
Wilson-Raybould later tempered her Twitter pronouncement by saying she wasn’t talking about any specific case, but the message was clear: she would “fix” the law so future Gerald Stanleys would be convicted.
The solution was Bill C-75, which has now passed third reading in parliament.
Joseph Neuberger, a Canadian criminal lawyer and legal expert warns that “this was a knee jerk reaction to one high profile case that makes for very bad law and can lead to increased time for jury trials and harms fairness for accused individuals.”
As Wilson-Raybould has made clear in her effort to transform the justice system, there is a growing concern towards the disproportionate incarceration of indigenous people in Canada.
However, peremptory challenges are more likely to help indigenous people who may be the accused person trying to obtain a jury that is more representative. Ironically, and perhaps tragically, rushing to change a law in search of “social justice” could end up making the system unintentionally worse for those we seek to help.
But, this is not the only controversial change that is being swept under the carpet by careless reporting and reckless tweets.
Neuberger has identified a combination of three changes that will basically railroad convictions for those who are wrongfully accused: Eliminating peremptory jury challenges, eliminating preliminary hearings, and new rules of evidence enacted by Bill C-51 that now impede defence evidence in charges of sexual assault.
Further aggravating is the ridiculous move by the Federal government to restrict preliminary hearings to charges that carry life imprisonment. Again, all of us who work in the Criminal Justice system will agree that when used efficiently, preliminary hearings are vital to ensuring a fair process to accused persons and often weed out cases that should never proceed to trial.
This change is a reaction to what is called the “Jordan Ruling,” which sets time limits on prosecutions. Numerous serious charges have been dismissed since the Jordan Ruling because the cases have taken too long to get to trial.
The problem addressed by the Jordan Ruling is real. An accused person has the right to face trial in an expedient manner and our justice system is torturously slow. The agony of delayed trials affects both the accused and the complainants.
But the solution to this problem is not to eliminate protections against wrongful convictions. It is not a solution to simply railroad the accused by eliminating the parts that make their trials fair.
While many people, even the accused, may wonder if preliminary hearings are useful, Neuberger explains:
I have effectively used preliminary hearings throughout my 26 year career to undermine prosecution evidence to such an extent that after the preliminary hearing, the Crown took a fair and balanced review of the evidence and withdrew as there was no reasonable prospect of conviction.
To some, especially those who learn about the criminal justice system via Twitter, this could sound like preliminary hearings are used to help people get out of standing trial. The reality is that no one should face a criminal trial unless the evidence against them is sufficient to warrant the charges.
The core principles of our modern justice system have been developed over thousands of years and at great human cost. Lessons, like the importance of a burden of proof, need to be kept alive and meaningful in our justice system—no matter how much compassion we have for the victims of crime.
There has been a concerted effort over the last decade to address the complex and difficult crime of sexual assault. Due to increased online activism and attention from reporters, the public has been encouraged to start from a position of presumed guilt when someone is accused of sexual misconduct or assault.
The position of belief has escalated to the point that even stating that someone accused of a sexual crime may be innocent is now denounced as a “rape myth.”
So how does this public debate translate into fair trials? How can the public support the “burden of proof” standard with a crime that rarely has witnesses and yet still believe in the concept of justice?
These questions will not and should not be resolved on Twitter.
The solution needs to respect the hard won rights of an accused to ensure the powers of the state don’t overwhelm the ability for an accused person to receive a fair trial.
While speed may sound efficient, Neuberger says that “removing preliminary hearings for cases such as sexual assault cases is a direct attack on the right to make full answer and defence. It panders to interest groups and does nothing to advance the truth finding purpose of criminal proceedings.”
The combination of eliminating peremptory jury challenges, preliminary hearings and the recent new rules obstructing defence evidence following the passing of Bill C-51 have likely created a railroad for wrongful convictions.
While everyone benefits from a more expeditious trial process, quality is more important than quantity. These current changes to Canada’s legal system have focused on speed and numbers not on the process of discovering facts.
While everyone can and should feel sympathy for the family of Coulten Boushie, who lost their loved one, we should not let politicians use that tragedy to undermine our legal system. The public deserves more than a tweet to explain why our criminal code is being rewritten.
We need to make rational decisions, not emotional ones.
The Canadian public deserves a legal system that remembers not all people accused of a crime are guilty and that every one of us deserves a fair trial. No one who is innocent expects to be accused of a crime. But we know it happens.
These legal changes may be popular and fuelled by online outrage but as Neuberger says, “It has the potential to lead to wrongful convictions. Shame on the government for more knee jerk legislation that is highly detrimental to what has been a justice system that was a beacon of fairness in the world.”
Garnett Genuis is the Conservative MP representing Sherwood Park–Fort Saskatchewan in Alberta.
One of the most important and formative experiences for me on the road to getting into politics was competitive debate—in both high school and university. I would strongly recommend this activity as optimal preparation for anyone considering the same path.
Competitive debaters compete to defend a point of view. They very often will defend a point of view that is not their own.
Every competitive debater is taught early that an essential characteristic of good debate is something called “clash”. Clash is when arguments are made to directly counter the arguments made by the other side—to show that, even on their own terms, the other side’s arguments fail. The alternative to a good debate characterized by clash is a bad debate which resembles two ships passing in the night—essentially, debaters doing their own monologue without much reference to what others are saying.
Debate in the Canadian Parliament has come to be characterized by the near complete absence of meaningful clash. MPs deliver prepared speeches one after the other that cast arguments on their own terms and play to their own social media following. It is extremely rare that an MP would use his or her speech to deconstruct the arguments of a previous speaker.
Clash is essential in good political conversations, though, because a neutral listener has a hard time weighing out who is right and who is wrong if meaningful refutation and deconstruction of arguments does not take place. If we are to be what Edmund Burke thought Parliament should be—the “deliberative assembly of one nation”, then we must talk to one another and about one another’s arguments.
In the same speech, Burke told voters in 1774: “Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament.”
It is very important for all members of the newly constituted 43rd parliament to reflect on the importance of clash and on Burke’s advice. If we are going to work together, then we must first be able to talk together, and disagree substantively, while seeking to persuade each other to change our perspectives. People who cannot argue together well will generally struggle to work together well. We must also denominate our conversations in terms of the common good, not the narrow particular interests of one group over another.
There are a few reasons why this will be particularly difficult in the 43rd parliament. The third largest political party exists explicitly to advance the interests of one region of the country over the interests of the rest of the country. The Bloc cannot be expected to seek to advance the national interest of a nation that they seek to break apart. Though less explicitly, the governing party has and will likely continue to pursue a strategy of ignoring the development needs of western Canada. When parties run regional instead of national campaigns, they are talking past some parts of the country they think they can ignore, and only talking to parts of the country that they think they need.
It has always been interesting to me that Justin Trudeau briefly did competitive debating as a student as well. However, he stopped competing early on, noting: “I discovered I had a serious limitation for either a debater or a lawyer. I wasn’t able to argue for something I didn’t passionately believe in.” Unfortunately, an inability to dig into, understand and defend views that are not yours is not just a limitation for a debater or a lawyer—it is also a limitation for a parliamentarian and for a leader. In the privacy of one’s own mind or as an intellectual exercise, one should be able to defend things that one does not believe in order to understand and argue against those same things later. A nation as diverse as Canada particularly needs leaders who are capable of understanding and responding to different modes of thought than their own.
I hope that we will be able to raise the quality of clash in upcoming parliamentary debates, but I worry that there are a variety of cultural factors, as well as institutional ones, that are working against us. We live in an age of social media filtering, where people easily get only the information that confirms their pre-existing biases. But more broadly, our culture has for a long time lacked a common understanding of what constitutes the common good—and so we generally treat political opinions as if they were expressions of individual emotive preferences as opposed to substantive deductions about facts. There are no short-term solutions to these problems but treating opinions as opinions instead of as feelings would be a good start.
For Conservatives, we can take some pride in the fact that our support grew across the country, and that we tried to speak in terms of national ideals and projects. Inevitably those ideals and projects were more popular in some places than in others. In this new Parliament, Conservatives must maintain a truly national orientation. I will defend the interests of my own riding, but I will seek to do so in terms that are persuasive to people in other regions and in other parties. Pursuing an idea of separatism in the west, which will never come to fruition, is not a good way to be persuasive to people in other regions. It is especially dangerous in an environment where our primary complaint is the land-locking of our resources.
I am not particularly optimistic about the amount of meaningful clash that will be on display in the next Parliament, but I hope to be pleasantly surprised.
The Conservatives took only 10 seats in Quebec in the 2019 election, one less than in 2015. Some of these were safe seats. The Conservatives beat a second-place Bloc Quebecois by over 17,000 votes in one riding and by over 10,000 votes in 4 more ridings. In two others, they beat the second-place Bloc by 6,306 and 4,813. The only really close CPC win was in Chicoutimi-Le Fjord, by 614 votes. The CPC also beat Maxime Bernier, People’s Party of Canada leader, by over 6000 votes. The CPC’s average victory was over 10,000 votes in the 10 Quebec ridings they won.
Elsewhere in Quebec, the Conservatives did terribly. They rarely placed second and, even where they did, were still, in most cases, way behind the winner. Meanwhile, in Ontario, the Liberals swept all 25 of Toronto’s seats, and 24 out of 29 seats in the surrounding suburbs. That’s 49 Liberals to 5 Conservatives in the GTA. In 2011, by comparison, the Liberals and NDP each won only 7 Toronto seats and the Conservatives swept the GTA. How many Quebec seats in that 2011 Conservative majority? Five.
Scheer’s team obviously hoped to pick up seats in Quebec. They apparently didn’t ask “Is that realistic?” and “At what cost?”
Why it is so important to the CPC to pander to Quebec, to the point of being weak on the nation’s economic interest, religious freedom, and life issues, when Harper won his only majority with only 5 seats in Quebec? How many seats were they hoping for? Fifteen max? Here is their track record: 0 (2004), 10 (2006), 10 (2008), 5 (2011), 11 (2015) and now 10 seats in 2019. They have nothing to show for their pandering, but they lost of 90% of GTA seats.
Scheer needed Ontario. He seemed to believe that saying very little of substance and taking no bold or innovative position on anything would do the trick, and that the Prime Minister’s own antics and scandals would bring him down. Evidently, voters needed more.
By “more” I don’t just mean in terms of policy difference, although Scheer’s party could have offered far more of that. I think voters needed to see more in terms of character difference. They know Trudeau is entitled, hypocritical, and untrustworthy. But what about Andrew Scheer, the career politician? Is he much different? On the campaign trail, it didn’t seem like it.
He needed to do more than attack a politically wounded Trudeau. He needed to present himself as a leader. Responding to brownface/blackface, Singh at least seemed sincere and concerned for Canadians. Scheer’s initial outrage seemed feigned. And in the debate, he seemed to relish attacking Trudeau too much–like he was happy blackface happened. Glee at another person’s failings isn’t a good look. But on substantive policy issues, he had little to offer. He was unclear on how to get pipelines built or how to balance the budget.
Honestly, I can’t think of anything Scheer said that made him stand out, except maybe that Quebec should be allowed to collect federal tax and to have more control over immigration. Scheer obviously hoped to pick up seats in Quebec and did plenty of pandering to that end. He even refused to say that he would legally fight Quebec’s efforts to block needed national infrastructure projects like pipelines.
Scheer was also unclear in his responses to questions about abortion (will you control your caucus on the issue? do you support funding abortions in other countries?). I’ve heard commentators say the CPC blew this election because Scheer is (personally, anyway) pro-life and socially conservative, while Quebec is very socially liberal. They fail to see that their obsession with gaining seats in the most liberal province is hurting them beyond it.
There are plenty of socially conservative voters in the GTA, and the Greater Vancouver Area, for that matter. For example, the prominent, pro-choice Conservative Lisa Raitt lost her GTA seat badly (by over 9,000 votes), whereas the openly pro-life Conservative Tamara Jansen took a GVA riding that the Liberals had won in 2015 by almost 6,000 votes.
Certainly, many potential CPC voters are pro-choice, but that doesn’t mean they can’t respect and support pro-life politicians. The evidence from swing ridings is that they can. But it’s easier to respect a politician who makes their position clear. Scheer did not.
Scheer gave his socially conservative base no reason to vote for him. He reneged on the promise of a tax credit for private school, which many southern Ontarians choose for religious reasons (even if they are not rich). He was ambiguous (or worse) regarding the freedom of caucus members to introduce bills to protect pre-born children, saying he would fight efforts to reopen the debate, but also that his party allowed different opinions and free votes(?). Unlike Harper, he was unwilling to state that his government would not fund abortion overseas.
That was not the only chance for principled leadership that Scheer flubbed. Quebec’s Bill 21 may have offered Scheer the clearest opportunity to distinguish himself as a principled leader and to give swing voters in the GTA and GVA a reason to vote CPC.
Like Trudeau and Singh, Scheer offered no plan to push back against Quebec’s Bill 21. Unlike Trudeau and Singh, Scheer did not even criticize the bill, but merely affirmed his own commitment to religious freedom and diversity.
Fairly or unfairly, many people remain suspicious of the Conservatives’ commitment to religious freedom for minority faiths. The barbaric practices “tip line” gimmick in the 2015 election certainly didn’t help.
Those whose resting assumption is that the Conservatives do not like diversity would have had a solid reason to question that assumption had Scheer been the only one defending Quebec’s minorities. Religious voters who often vote Liberal based on their perception that the Liberals are the party that defends minority faiths might have changed their vote. And religious people who typically vote CPC would have had more motivation to go vote.
Scheer should have combined opposition to Bill 21 with opposition to the Liberals’ Summer Jobs attestation requirement, linking the two together in voters’ minds. The message: of course Trudeau doesn’t support religious people in Quebec–he’s discriminating against them across Canada. Canada Summer Jobs was Trudeau’s secularism law. In Quebec, it’s no public sector jobs for people who visibly express their faith. In Trudeau’s Canada, it’s exclusion from public benefits if you don’t profess Trudeau’s ideology. Which is worse?
Scheer’s office was maddeningly slow and cautious in its response to Canada Summer Jobs. The CPC seems so irrationally terrified of being painted “anti-choice” that they fail to show leadership on such fundamental issues as freedom of religion and expression.
One defence of Scheer’s silence on Bill 21 is that Conservatives respect the division of powers between federal and provincial government. Frankly, this supposedly principled reason hardly seems like the real reason for the Scheer campaign’s pandering. But if it was, it was mistaken. First, Scheer could have criticized the bill and called on Quebec to repeal it without violating the legal division of powers–that would simply be showing leadership.
However, Scheer could also have made the case that Bill 21 is constitutionally unacceptable, not only as a violation of the Charter (for which Quebec can invoke the notwithstanding clause), but also as a violation of our 1867 Constitution. Before the Charter was enacted in 1982, Canada’s courts protected religious minorities (particularly in Quebec) by holding that religion and political speech were matters beyond provincial legislative competence, meaning a province could not make these the direct target of any law, though they could be regulated incidentally. This protects minorities against regional biases.
Scheer professes to take religious freedom seriously. He has criticized the Liberals for closing the Office of Ambassador for Religious Freedom–which had a mandate to promote religious freedom abroad through diplomacy–and said he would reopen it. This would be much more convincing if he were willing to vigorously defend religious freedom at home, first. In this campaign, perhaps caving to liberal pundits and political consultants, Scheer failed to do so.
Scheer has done his best to present himself and his party as officially pro-choice. He said next to nothing about the issue of medically assisted suicide, even as the Liberals promised to expand it. Avoiding “life issues” seems par for the course among CPC’s leadership. Will weakness on freedom of speech and religion follow?
Principled leadership won’t always be rewarded politically, of course. Voters are flawed, too. But the irony is that Scheer’s political pragmatism gained him nothing. Rather, it cost his party in terms of credibility, image, supporter turnout, religious swing voters, and seats in Parliament.
In this recent federal election, a new election law came into place that punishes people who spread fake or misleading penalties with severe punishments, according to the CBC. During the election, and in the foreseeable future, anyone who publishes disinformation online will face up to five years in prison and a fine up to $50,000.
The one crux, however, was that the word “knowingly” was removed from the legislation, meaning that anyone who accidentally posts false information can be charged under Canada’s criminal code.
This applies to any post that disseminates false information about a candidate, a political party, or the leader of a political party. This law will likely be unfeasible to enforce as disinformation is shared so easily on social media.
These laws have been created in response to the incidents of foreign interference that have plagued western democracies over the past few years. In the United States, for example, allegations of Russian interference have taken up large portions of the national political debate.
This new election law has faced criticism for restricting free speech and being a dramatically heavy punishment for what shouldn’t necessarily be a crime.
“We didn’t see high levels of effective disinformation campaigns. We didn’t see evidence of effective bot networks in any of the major platforms. Yet we saw a lot of coverage of these things,” said Derek Ruths, a professor of computer science at McGill University in Montreal to the CBC a few weeks ago, in a story about how disinformation was overblown last election.
Disclosure: Yianni Macris formerly served as Parliamentary Assistant to CPC MP Ted Falk. He currently studies public relations.
I’ve kept rather too quiet with respect to my opinion on the election results, especially with how it turned out for the Conservative Party. Silent I can no longer be. Yes, the Conservatives won the popular vote. But I’d like to clear the air: winning the popular vote is virtually irrelevant; our electoral system is not designed like that.
Let’s take a step back for a second. Conservatives were freaking out when the Liberals had promised electoral reform, and move to proportional representation. Nobody wanted it. But now, Conservatives are harping on the fact that we won the popular vote.
Yes, if the Liberals had introduced their electoral reform, the Conservatives would’ve won more seats. But like many Tories, I’m still happy that electoral reform didn’t happen. As Conservatives, we support the preservation of our traditional parliamentary system which includes our electoral process. Conservatives need to drop the popular vote line and start working on how we will win the election in 18 to 24 months.
The result for the Conservative Party on Oct. 21 was devastating in every way possible.
While I certainly won’t go as far as to say that Andrew Scheer had the election handed to him, I will say that he was given the opportunity to wipe Justin Trudeau and his Liberal team away from forming a minority government.
First it was the Vice-Admiral Mark Norman Affair, then SNC-Lavalin, and to top it all off, brownface. That’s not even mentioning the prior scandals before 2019. In democracies similar to ours, this would result not only in the loss of an election, but an impeachment (or something similar), along with a possible prosecution.
Scheer failed to capitalize.
Credit to Mr. Scheer for wiping the Liberals out of Alberta and Saskatchewan, making gains in British Columbia and Manitoba, and picking up a few seats in the East Coast.
But it’s not enough. Not enough for the 6 million plus Canadians that voted for their local Conservative candidates. Canadians deserved better than Justin Trudeau.
There was only one problem. Andrew Scheer couldn’t give Canadians the better that they both wanted and deserved.
Peter MacKay said it best: “To use a good Canadian analogy, it was like having a breakaway on an open net and missing the net.”
He is right. Politics is no different than hockey. Our leaders are like captains. Our candidates and members are no different than the rest of the players, and our staff teams are like the coaches, managers, trainers — essential for everything to come together on game day. On every team, there is a diversity of individuals. Each and every one of them with different opinions, faiths, ethnicities, etc.
Andrew Scheer didn’t lose because of his personal beliefs. He didn’t lose because of his views on abortion or same-sex marriage. He just didn’t know how to respond in the right way when asked. He knew he would be asked about his views. The fact that he wasn’t prepared for it (or just had a bad plan, perhaps) is grounds for concern amongst party members and supporters.
He chose to dance around every question with “this is the law of the land and will not change…” until Oct. 3. He eventually said that his “personal position has always been open and consistent. I am personally pro-life but I’ve also made the commitment that as leader of this party it is my responsibility to ensure that we do not re-open this debate, that we focus on issues that unite our party and unite Canadians.”
I actually don’t see anything wrong with that. Even Prime Minister Trudeau used to hold that same belief, as do many Liberal MPs.
Unfortunately, he missed out on one of the golden rules of politics: define yourself before your opponent defines you.
He was late to that battle, despite plenty of advance notice. And his weak response to the media didn’t help either.
He did a fine job of defining Trudeau prior to and going into the election, yet he flopped at defining himself.
There was the narrative that Andrew Scheer and the Conservatives were coming to take your right to abortion and gay marriage. Any individual with a good understanding of politics would understand that this was bunk.
But you can’t expect to change a narrative at the eleventh hour and hope for the best. That’s extremely irresponsible.
His team didn’t follow the playbook. When the team loses, the responsibility falls on the captain and head coach. A loss this devastating would result in a new captain and a new coach in any sport, especially with so much riding on the game.
It has been suggested by some Conservatives that we need a new leader. I believe we do, but not because of the personal beliefs that Andrew Scheer holds.
If that was the case, then that would ultimately disqualify the majority of former Prime Ministers from ever running for office today. The notion that an individual must conform to certain views in order to be deemed “qualified” for higher office, a political equivalent of a chilling effect is created. It inherently punishes someone for views that they are entitled to not just as individuals, but as Canadians.
That chilling effect is detrimental to our democracy and to diversity of public opinion.
Conservatives who believe that we need a new leader who holds certain personal views should try to see it this way.
Yes, a new leader should be picked, but for the right reasons. What is clear is that we need someone who has a much better communications strategy. A team that has everything planned out. A team that creates a playbook, and makes necessary adaptations should things go wrong. Someone who will define himself before their opponent defines them.