A group of Kenora lawyers say new crime legislation tabled by the Harper government will place additional stress on the northwest’s already overburdened legal system.

Bill C-10, known as The Safe Streets and Communities Act introduces increased penalties and mandatory minimum sentences for sexual offences against children, violent crime, offences involving firearms, drug production, trafficking and association with organized crime, especially with repeat offenders. The new laws will give the courts new tools to keep violent and repeat young offenders in custody and off the streets while awaiting trial.

Kenora Conservative MP Greg Rickford, a lawyer himself, says he believes Canadians have demonstrated a desire to strengthen and penalties for the most serious of crimes and those who perpetrate them repeatedly.

“This bill has some specific targets in terms of criminal activity,” said Rickford. “It contemplates in a meaningful and substantive way child exploitation and organized crime which includes major drug trafficking, elements of terrorism and the most serious violent crimes — whether we’re talking about adult or youth offenders. To that end we believe we have a strong mandate and support from Canadians.”

Kenora attorney Peter Kirby of the Kenora Legal Sentencing Group (KLSG) thinks that the Bill C-10 will have effects that reach beyond Canada’s most violent criminals into property crime, fraud and most offences involving bodily injury. He argues that the Bill C-10 will have an adverse affect on conditional sentencing and the court’s ability to render judgments that take significant social and cultural factors into account.

“If someone breaks someone’s leg, that person, under the new law, may not be eligible for a conditional sentence — even though that person may have no prior criminal record, that person has taken steps to deal with alcohol or drug issues, that person is gainfully employed, or that person has a family. Perhaps that person has met with the victim through some restorative justice program and there’s been some healing, some forgiveness and maybe that person has made a contract to make amends to the victim. Maybe the victim doesn’t want that person to go to jail — maybe it’s a friend, or a relative. In any event the judge won’t be able to use any of those factors to say, ‘I’m not going to send this person to jail. We’re tying the judges’ hands in these cases. We don’t allow for a fair, compassionate look at individual circumstances.”

Rickford says lawmakers have not extended mandatory minimum sentences into offences like lower level drug possession, citing the success of conditional and alternate forms of sentencing in such cases.

“Many of the institutional components of our justice system that have been functioning well and that we’re pleased with the results of, remain untouched, like the drug treatment program. We also remain committed to the Aboriginal Justice Strategy. It’s an investment of $85 million per year and it’s significantly reduced the recidivism rate among the Aboriginal justice system. These are things that we continue to protect because we know they work.”

While First Nations persons represent four per cent of the population and about 20 per cent of the prison population nationally, Kirby says incarceration rates within the region are disproportionally high. He adds a recent head count at the Kenora jail showed that 85 per cent of male inmates were of First Nations descent, a number that rose to 100 per cent among women inmates. He says addressing such a unique imbalance requires a lot of flexibility.

The attorney fears that the new legislation will trump the Gladue Principle — a 1999 Supreme Court decision often invoked to request that the court take into consideration the social circumstances facing an Aboriginal  offender and pursue a conditional, or restorative sentencing process.

Rickford says the Gladue Principle, more commonly used in less serious crimes, will remain intact.

Kirby says he believes that mandatory minimum sentencing will send an even higher number of First Nations offenders to prison, but not before the courts are tied up in excessive trials.

“The whole conditional sentencing regime is being whittled down to nothingness and that concerns us greatly in this part of the country because defence lawyers work very hard to set up programs for their clients so that they don’t have to go to jail, or don’t have to go to jail for a long time,” said Kirby. “So what’s the incentive for someone to participate in a rehabilitation process before they are sentenced if they know they are going to get jail time?”

Kirby isn’t the only one who thinks mandatory minimum sentences will send more cases to trial — creating an additional demand on court resources.

While Dryden Police Service Chief Rob Davis says Bill C-10 has the potential to tie up police resources in court and trickle costs down to municipalities, he does welcome stiffer penalties for violent offences.

“One thing that bothers me right now is the light sentencing across Ontario and Canada,” said Davis. “The victims come out of this disillusioned with the justice system. My experience has been that we really have to work with the victims to get them to come to court, get on the stand and testify against the offender. Then, when the offender gets a minimal or weak sentence, or an absolute discharge, they’re often back in the community before our victims and witnesses are. So from that perspective there are some results for those who are impacted by crime.”

From the policing perspective, Davis says the legislation is lacking in crime prevention, a core part of the mandate for police services across the country.

“Getting to an offender early in their life, that’s where you’ll prevent crime,” said Davis. “This bill speaks nothing to that aspect. It’s a little disheartening to see that there’s no reference to that in the bill when we know how important of a part that plays. There’s enough research out there to show that to change a criminal, you need to change behaviour. There’s no mention of that in C-10. It seems to focus on incarceration.”

When it comes to First Nations policing, the former Six Nations police officer says he’s also seen his share of frustration among Aboriginal communities with the Gladue-influenced sentencing.

“There (Six Nations) I saw people manipulate weak sentences so that it was a revolving door,” said Davis. “They were in and out of the court system so quickly that it wasn’t unusual to see them re-offending in a week, or two weeks. It became a game for them. It got to the point where the elected council wrote a letter saying, ‘enough is enough’. We saw political leadership stand up and ask for more appropriate sentences. I’m still learning what the dynamics are here in the northwest.”

While C-10 may deliver a stiffer brand of Canadian justice, Davis says the legal dynamic will evolve as offenders will have everything to gain in taking their cases to trial.

“I don’t think there’s been a lot of thought and foresight of how this is going to trickle down into the actual wheels of the justice system,” said Davis. “If you know you’re facing a mandatory sentence, why not fight it? It’s going to clog up a system that’s already struggling to stay on track. You’ll see our resources tied up in building the case, processing the case. The Crown’s offices are already inundated with files. There’s a shortage of judges in Ontario. You may see court cases delayed two, or three years  — then do you run into a Charter issue?”

The District of Kenora Law Association recently passed resolutions in support of the Canadian Bar Association’s recommendations to add an escape clause or ‘safety valve’ to allow judges to opt out of imposing a mandatory minimum sentences in circumstances where a such sentence would constitute cruel and unusual punishment.

“What the Canadian Bar Association is suggesting is that the government needs to sit down with all these pieces of legislation and decide, ‘what is the benefit and the cost to society in dollar terms and in other terms?’. Hopefully, the thing that would come from that kind of study would be a more coherent structure for sentencing, so that it’s not done on a piecemeal basis, which is what is done right now.”