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The Canadian Bar Association

CBA Council: Criminal justice resolutions

August 14 2014 14 August 2014

CBA Council passed two resolutions Thursday aimed at underlining the importance of first principles in the criminal justice system.

Put forward by the CBA Criminal Justice Section, the resolutions call on the federal government to “publicly recognize and reprioritize” longstanding sentencing principles of rehabilitation and reintegration of offenders and urges Ottawa to ensure that criminal justice legislation doesn’t interfere with prosecutorial independence.

A third resolution dealing with wrongful convictions seeks a Criminal Code amendment to provide a reasonable standard for access to exhibits and other disclosure during post-conviction reviews.

Eric Gottardi, speaking on behalf of the section, said it is concerned that recent legislation related to mandatory minimum sentencing, restrictions on graduated release and abolition of early release, among others, has de-emphasized sentencing principles of rehabilitation and reintegration of offenders.

“This is an opportunity for the CBA to recommit and to ask government to recommit to a balanced approach to sentencing in the criminal justice system,” he said.

The section also wanted to re-emphasize the importance of prosecutorial independence. “At a time when concerns are raised about the importance of the participation of all stakeholders in the justice system, it’s important to ensure that the fundamental pillars of system aren’t eroded in any way,” Gottardi said.

As the resolution notes, recent legislative proposals aimed at expanding the influence of groups and individuals who are not formally not part of the criminal trial process “could impair the independent exercise of prosecutorial  discretion.”

The Supreme Court of Canada held in Miazga that the Attorney-General’s independence is so fundamental to the integrity of the justice system that it is constitutionally entrenched.

A third resolution tackled the limited opportunities for post-conviction review under s. 696.1 of the Criminal Code. An application must be supported by “new matters of significance” that can satisfy the minister of a “reasonable basis to conclude that a miscarriage of justice likely occurred.”

There is currently no statutory right to access exhibits for forensic testing which, Gottardi points out, is often the most valuable resource for establishing innocence, especially since in many cases there have been scientific advances testing since the time of conviction.

The resolution also urges governments to enact legislation to compensate the wrongfully convicted, including providing interim support after release. There is currently no coherent system to govern calculation or distribution of compensation for the wrongfully convicted.

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