Volunteering for law reform

Thanks to ongoing efforts by dedicated volunteer members, the CBA Criminal Law Section played a key role in helping to change Canada's mandatory minimum sentences (MMS) laws, proposing several amendments to Bill C-5, passed in November 2022. 

"Canada was the only common-law jurisdiction in the world which used mandatory minimums that didn't have a safety valve," says Eric Gottardi, senior partner at Peck and Company in Vancouver and Criminal Justice Section Member-at-Large. In proposing the adoption of a safety-valve process, Section lawyers wanted to preserve some judicial discretion if the MMS would result in essentially undue hardship or a disproportionate sentence, he adds.

Mandatory minimum sentences can seem attractive and are often popular with the public, says Gottardi. Enacted initially during Stephen Harper's Conservative "tough on crime" agenda, it was considered unlikely that MMSs would be repealed. "So we needed to think about creative ways to work within the law reform space knowing that our primary position—which is these things are just a bad idea, you should get rid of them—wasn't going to make any headway."

In its submission supporting Bill C-5, the Section proposed removing several MMSs from the Criminal Code and all MMSs from the Controlled Drugs and Substances Act; restoring the availability of conditional sentence orders to many offences; and setting up a diversion program for simple drug possession offences. 

The bill "takes important steps towards reforming the Criminal Code to allow a more evidence-based, principled approach to sentencing proceedings," according to the submission. "'Tough on crime' is a failed approach to criminal law policy. It has, among other things, increased system delay and made the over-incarceration of marginalized individuals worse."

The Section chose several creative ways to work within the law reform space to bring about those changes. A member attended the law reform-oriented Uniform Law Conference of Canada as a CBA representative and co-chaired a panel with a Crown prosecutor, jointly proposing that Canada should adopt a safety-valve provision. That "would preserve a bit of judicial discretion, even where there was an MMS, if the MMS would result in essentially undue hardship or a really disproportionate sentence," says Gottardi. The Section also passed resolutions through the CBA that were raised with the Justice Minister as being a law reform advocacy point. 

The Section also intervened in Supreme Court of Canada MMS cases R. v. Nur and R. v. Lloyd, says Gottardi, highlighting that Canada was the only common-law jurisdiction with no safety valve. The court used this in its analysis. "We saw a series of mandatory minimums across the country get struck down in the years following Nur and Lloyd," says Gottardi.

The Section had identified the intervention in those cases as a goal several years earlier, says Gottardi. "It was really exciting and rewarding to have taken a long-term approach to trying to achieve the goals that you wanted to achieve, but you couldn't achieve them immediately through trying to lobby the Conservative government in the House."

Kevin Westell, principal at Pender Litigation in Vancouver and chair of the CBA's National Criminal Justice Section, says volunteer work has been a huge part of his professional life for almost a decade. "It's been incredibly meaningful to be involved with such important law reform projects."

Indeed, volunteering with the CBA offers opportunities to help reform Canadian law while offering younger lawyers excellent mentorship opportunities. According to Westell, lawyers can weigh in, be heard, and inform the CBA's policy positions. "You'll eventually be asked to do things like lead the drafting of a policy position and potentially go to testify before Parliamentary committees before the Senate committee or the House committee.

"If you stick with this and you work hard, and you apply yourself to it, you have opportunities to share space and dialogue with the people who are influencing and shaping the development of criminal law in this country and the way it's evolving," he says. "The opportunity to hear and see what others are doing is amazingly valuable."

Westell believes that volunteering is also an essential part of being a lawyer. "It's part of how you give back to the profession; it's part of what makes the legal profession and being a lawyer special." He has met people with interesting and different points of view about criminal law, including trading perspectives with defence lawyers, Crown counsel, and government lawyers who do legislative drafting and criminal justice policy and development. 

Getting the work done and meeting deadlines can be extremely intense, but he believes that "the enrichment of our personal and professional life is more than worth all the time we spend." He adds, "it's made me a stronger lawyer and my professional life much richer. And my personal life too." 

Younger lawyers can start volunteering wherever possible, recommends Westell, including in local subsections. With so much being done remotely since the pandemic began, there's now greater capacity for involvement in all jurisdictions. He says the ancillary benefits are massive, including forming relationships with lawyers in various cities and reading reports from other jurisdictions on how they interpret different issues or deal with certain subjects. 

There's pride, too, in accomplishing work, says Westell, adding that the Section is uniquely positioned to speak with authority on law reform issues. "We're a national organization, we outreach to all corners of the country, and we're also in an organization that draws its membership from both Crown and defence. It's a great responsibility and a great privilege to be able to advocate from that position."