Pubdate: Wed, 28 Oct 2015
Source: Simcoe Reformer, The (CN ON)
Copyright: 2015 Sun Media
Author: Shawn Swarts
Page: A6


In many of my previous columns I have been highly critical of the
Harper government's tough on crime legislation. Perhaps the country
agreed with me by voting in a majority Liberal government for the next
four years. This change hopefully will allow the Liberals to reverse
much of the damage done to our justice system by the Conservative
tough on crime policies. Here are five areas that I hope the Liberals
will change or at least go back to our previous system.

Over the last decade the Conservatives have legislated mandatory
minimum jail sentences for a wide variety of drug, gun and sexual
offenses. These mandatory minimum sentences have taken away the
discretion of the judge to impose a sentence suitable to the
particular case before them and instead forced them to sentence the
accused to generally long prison sentences. Most of these mandatory
minimums should be repealed and the task of creating an appropriate
sentence should be given back to the judge who is most familiar with
each case. On a similar vein the Conservatives greatly reduced the
type of offense where a conditional sentence could be used as a
penalty. A conditional sentence is a jail sentence but one that allows
the accused to serve his time at home thus allowing them to continue
to work and be a productive member of society. It is also a very
helpful sentence for accused who suffer from mental or physical
disabilities. Regrettably the Conservatives greatly reduced ! the type
of crimes where this sentence was available, again those laws should
be repealed and the conditional sentence should be an option available
to the sentencing judge.

The Conservatives instituted a mandatory victim fine surcharge of $100
for every summary conviction and $200 for every indictable conviction.
This surcharge was imposed on every offender regardless of their
mental state or ability to pay. Although the victim fine surcharge has
its uses the judge should be able to waive its application in cases
where the accused clearly is unable to pay. Again the law should be
changed to give the sentencing judge the discretion to impose this
surcharge or not depending on each case.

Justin Trudeau campaigned on legalizing marijuana if elected. He has
now been elected with a majority government, I urge him to follow
through with this promise. We as a nation spend hundreds of millions
of dollars on policing, courts and jails for our war on drugs. This 60
year war has failed dramatically, drugs should be considered a medical
issue not a criminal one, and we should not be spending huge amounts
of money policing and prosecuting marijuana offenses. Four states in
the US have legalized this plant and it turns out the sky did not
fall, drug use did not even increase in these states and they are
receiving a much-needed new source of government income by taxation on
the plant. It is time to entirely revamp our laws on drugs and
legalize and tax marijuana.

Finally there is the issue of the Senate. The Supreme Court has made
it clear that Parliament can't of its own will abolish the Senate, it
requires a constitutional amendment and the support of the provinces.
The long and short of this is that the Senate will not be abolished
any time soon. In the past the Senate was supposed to be the chamber
for sober second thought on legislation brought from Parliament. Its
role was to step back and study legislation to ensure it was fair and
not overtly one-sided. In the past the Senate would hold hearings on
legislation and offer modest changes to this legislation where

The Senate can actually serve a positive role in our legislative 
process. Regrettably, Stephen Harper chose to fill the Senate with 
political cronies (more than any other PM in history) who were simply 
yes-men for whatever legislation his government passed. In 10 years he 
has transformed the Senate into a much more polarized entity bowing to 
the political w! ill of Mr. Harper's as Prime Minister. I urge Prime 
Minister Trudeau to try to bring back the Senate to its past 
incarnation. To appoint senators in the future not based on their 
political donations and affiliations but rather to appoint a Senate of 
wise men and woman well versed in our Canadian history and legislative 

These are just a few ideas that could help make our system more just
in the future. I wish the new government good luck on their
legislative endeavors and hope that revamping our criminal justice
system is high on their agenda.

Shawn Swarts is a lawyer at the law firm of Cobb & Jones LLP. Should you 
have any questions for Ask A Lawyer, please direct them to the Simcoe 
Reformer or ask a lawyer of your choice. For more articles, visit the 
Library page at www.cobbjone
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