Hostile Environment for Criminals - At What Cost? (by David G. Chow)

This article was written on November 11th, 2007, in response to Premier Ed Stelmach's address to Albertans. The article was forwarded to both the Calgary Herald and Calgary Sun, but was not published in either newspaper. In light of the barrage of recent "catch and release" type media reports and the plethora of troubling remarks by Alberta's Minister of Justice, Ms. Alison Redford, Calgary's Chief of Police, Rick Hansen, journalists such as Rick Bell and Alberta Court of Queen's Bench Justice Wachowich, it is the writer's view that the article continues to have significance.

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“A catch and release system works for fish. It doesn’t deter crime”

-- Alberta Premier, Ed Stelmach

On November 6th, 2007 Alberta Premier, Ed Stelmach delivered a stern message to persons alleged to have committed criminal offences: “We must take criminals off our streets – and keep them off!” The Premier’s message comes in the wake of a barrage of violent incidents, some involving firearms and many linked to organized crime. The message was simple, the rhetoric predictable – lets make our province and our country “…a hostile environment for criminals”.

There is little doubt that most ordinary citizens laud the objective. After all, crime control is central to the free and democratic existence of all Canadians. Absent crime control, life, in the immortal words of Thomas Hobbes would be “nasty, brutish and short”. In the world today, fear of a nasty, brutish and short existence is omnipresent. Perhaps the word “trepidation” aptly defines Western society. Fear of terror, fear of crime, fear of drugs, fear of gangs, fear of poverty, fear of sickness, fear of environmental catastrophe, fear of nuclear devastation and now fear of Pakistan represent just a small bundle of fears currently stowed in our collective consciousness. In a highly politicized world where the media is the message, capitalizing on fear is an industry. Manufacture it, market it, ease the collective consciousness by convincing citizens you can stop it and the populace will applaud your efforts. Perhaps they will even award you a second term in office! The message of this article is to caution citizens against being duped by the rhetoric.

The problem with speechifying is that though it contains a message, it often fails to convey information accurately, honestly and in context. The problem with Premier Stelmach’s November 6th, 2007 message – where he reminded Canadians about the need to “…preserve Alberta’s traditional values” — is that he failed to account for Alberta’s traditional values.

Traditionally, Alberta jurists have played a prominent role in the interpretation and development of both our Canadian Charter of Rights and Freedoms and Canadian criminal law. For the most part, the Alberta way has been focused upon the application of the rule of law and the preservation of civil liberties. Jurists such as former Alberta Court of Appeal Justice Milt Harradence were pioneers, whose torch is carried today by many members of Alberta’s legal community. In the spirit of Canada’s democratic traditions, Alberta jurists have zealously applied our most sacred legal principles, which include the presumption of innocence, the right to a fair trial and the right not to be deprived of reasonable bail without just cause. If our legal traditions are any reflection of traditional Alberta values, citizens of this province do not value otherwise.

Premier Stelmach’s address, which includes a proposal to “overhaul the bail system” follows on the heels of several opportunistic – get tough on crime – type comments by a plethora of high ranking officials, including Calgary’s Mayor, its Chief of Police and Alberta’s Minister of Justice. The Premier’s words were strong – perhaps even captivating – but on any objective analysis his message is nothing short of false rhetoric.

In just a few choice phrases, the Premier demonstrated an appalling lack of understanding of our most sacred legal traditions. For starters, the presumption of innocence is a hallmark of both the Canadian criminal justice system and our free and democratic society. Premier Stelmach’s comment, “the catch and release system works for fish, …it doesn’t deter crime” completely ignores the fact that all persons, even those with atrocious criminal records, are innocent until proven guilty. Premier Stelmach also apparently misunderstood that “deterrence” is a principle of sentencing, not bail. Surely Canada’s legal tradition has never been to punish the innocent?

The noble traditions of Canada’s criminal justice system have long recognized that public confidence in the bail process is not to be measured against the irrational, ill-informed or overly excitable citizen; rather it is to be gauged against the backdrop of ordinary, reasonable, fair-minded members of society, who are informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the prosecution. It appears that Premier Stelmach is not a member of this latter group.

Is the detention of the accused necessary to ensure his or her attendance in court? Is the accused a substantial likelihood to commit a criminal offence if released? Would confidence in the administration of justice be so imperiled if the accused was released from custody? These are the appropriate questions as to whether a person should be granted bail. Strict application of these principles is the method by which the presumption of innocence is protected. The presumption of innocence is not just an Alberta tradition, it is a democratic tradition.

For Albertan’s to have faith in the criminal justice system it is imperative to protect the rights of the innocent. Any deviation from this objective stands in stark contrast to our way of life – a way of life which should not be abandoned in a fit of trepidation over the seemingly endless barrage of media reports telling Canadians how are society is falling prey to crime. Canadians should remember that our criminal justice system cannot fix the ills of the world. Our justice system is reactive, not proactive; and does not operate in place of good old-fashioned family values. Canadians should also recognize that since the Canadian Charter of Rights and Freedoms only applies to relationships involving individuals and the State, it is perhaps ironic that the rights and freedoms of all law abiding citizens in Canada are protected through the prosecution of alleged criminals. In many instances the plight of the ignoble deviant champions the cause of all citizens to prosper in a free and democratic society. It is the principled application of law to such instances that separates Canadian society from the dystopic civilizations wherein in the tyranny of the few reigns over the many.

Indeed, most Canadians will agree that this country should be a hostile environment for criminals. However, making Canada such a place should not come at the expense of our civil liberties or our democratic way of life. In the words of former Chief Justice of the Supreme Court of Canada, Antonio Lamer: “Members of the public generally become conscious of the importance of protecting the rights and freedoms of the accused only when they are in some way brought close to the system either personally or through the experience of friends or family[1]”. What if the criminal justice system somehow touched you?

Submitted by:

David G. Chow
Barrister
Fagan & Chow
www.faganandchow.com


[1] R. v. Collins, [1987] 1 S.C.R. 265 at 282.