New crime bill good for lawyers

But not those with mental disabilities

When the Conservative government passes its Safe Streets and Communities Act this fall, one beneficiary of the legislation that wraps get-tough-on crime measures into one big bill could be criminal lawyers.

“From a business point of view, it’s probably a good thing,” said Maple Ridge lawyer Rob Gunnell.

Under the threat of minimum jail sentences for some offences, those accused could be more likely to fight their cases in court, with the help of defence lawyers, says Gunnell.

The bill could also see more kids dragged into the prison system, particularly those with mental disabilities who shouldn’t be there, a concern for Gunnell and Gord Kehler, both lawyers who help out at Maple Ridge’s Asante Centre for Fetal Alcohol Syndrome.

Teens or young adults with fetal alcohol spectrum disorder may not have the ability to control themselves, no matter what sentence or punishment they get, said Gunnell, who recently helped the centre develop a curriculum for diagnosing FASD.

Having minimum sentences removes the discretion of the judges, who have the complete background on the accused, he added.

“The minimum sentences, I think, panders to the people out there voting. It’s a good vote-getter.”

But the judges are most qualified to decide who does time and who gets a second chance. “They’re the ones who should be making the decision, as far as I’m concerned.”

Many studies show that long prison terms don’t make society any safer, Gunnell added.

The Safe Streets and Communities Act proposes amendments to the Youth Criminal Justice Act that would:

• highlight the protection of society as a fundamental principle of the Youth Criminal Justice Act;

• simplify pre-trial detention rules to help ensure that, when necessary, violent and repeat young offenders are kept off the streets while awaiting trial;

• strengthen sentencing provisions and reduce barriers to custody where appropriate for violent and repeat young offenders.

Specifically, the legislation would be amended to:

• add “specific deterrence and denunciation” to the principles of sentencing to discourage a particular offender from committing further offences;

• expand the definition of “violent offence” to include behaviour that endangers the life or safety of others, even if no one was hurt, thus making it easier to jail youth;

• allow custodial sentences to be imposed, where appropriate, on youth who have a pattern of findings of guilt or non-judicial sanctions;

• require the Crown to consider seeking adult sentences for youth convicted of the most serious violent crimes (murder, attempted murder, manslaughter and aggravated sexual assault).  Provinces and territories would maintain the discretion to set the age at which this requirement would apply;

• require the courts to consider lifting the publication ban on the names of young offenders convicted of “violent offences,” when youth sentences are given;

• require police to keep records when informal measures are used in order to make it easier to identify patterns of re-offending;

• and ensure that all young offenders under 18 who are given a custodial sentence will serve it in a youth facility.

 

As well, tougher terms for possessing drugs for the purpose of trafficking, including mandatory jail of six months for those growing six or more marijuana plants for the purpose of trafficking, are part of the legislation.

Kehler says the legislation moves away from an approach that tries to understand how disabilities affect people to a direction that’s been shown to be “a complete failure.”

Teens with FASD are particularly vulnerable to being caught up in the criminal lifestyle, he pointed out.

The change in the judicial system will be a shift in emphasis from the offender to the action, he added.

“When you’re dealing with a brain-damaged individual, you don’t simply say this is what you’ve done and the punishment is going to be harsh and you’re going to learn from this.

“I can tell you right now, they are not going to learn from this. It’s not the way the criminal justice system, in my mind, should operate. To do that is self-defeating.”

Kehler pointed out one of the goals of the Asante centre is to properly diagnose those with FASD so the controls and counselling can be put in place. Many with the condition don’t know they have it.

“You’re dealing with a brain injury, literally a brain injury. They’re very impulsive. I can’t emphasize enough, it’s a brain injury.

“If you ever deal with someone with a brain injury, you know it’s not normal, rational behaviour.”

Kehler said the legislation seems to be driven by a particular group within the government “that believes, maybe sincerely, there’s an advantage to dealing with people harshly, whether it’s political advantage or let-this-be-a-lesson-to-all-of-you type of advantage, but it’s definitely a group that has the ear of the minister that says this is what we should do, despite the almost universal condemnation of the approach.

Pitt Meadows-Maple Ridge-Mission MP Randy Kamp has said the Canadian public supports the legislation.