An interview with Justice Minister Peter MacKay
In light of the House of Commons reconvening on January 27, The Prince Arthur Herald columnist Samuel Mosonyi spoke with Justice Minister Peter MacKay to gauge the government’s position and rationale on a number of initiatives currently being pursued in the Justice portfolio. These include the Supreme Court’s Bedford decision on prostitution, a cyberbullying awareness initiative, mandatory victim surcharges, the proposed Not Criminally Responsible Reform Act, and more. Here is the full interview.
PROSTITUTION AND THE BEDFORD DECISION
You tweeted recently that you “disagree with Justin Trudeau’s focus on legalizing prostitution, which will harm and put vulnerable Canadians at risk.” Has Justin Trudeau come out in support of legalization?
Of marijuana, yes. Of prostitution, not yet, although his party, and particularly the youth wing, appears to be very publicly musing, if not advocating, that position. So while we’ve been focused on making our justice system more accountable, Mr. Trudeau and certainly his party seem to be focusing on legalizing marijuana and prostitution. And frankly I tweeted that because I fundamentally disagree, and I think in both instances it would be detrimental to our country’s best interest. It would certainly further endanger vulnerable segments of our population. And I don’t believe that any government of any political stripe should be facilitating the increase of access to drugs or to the sex trade. I don’t think it’s a good thing for our country, certainly not in the best interests of young people, or our citizens. I’m kind of taken aback, frankly, when I heard that yesterday.
After the Bedford decision you released a statement stating that the government is exploring all options to ensure the criminal law continues to address the significant harms to communities, prostitutes, and vulnerable persons. Would it be an option to allow communities themselves to regulate prostitution through zoning and licensing bylaws, instead of treating it as a criminal law matter?
I don’t believe so. I say that because it really is in the federal area of criminal legislation in my view to address this broadly across the country. We’re going to be receiving a lot of input and there will be extensive consultation on this issue. But it’s going to take a much more concerted effort than what any local government or jurisdiction could do. So for that reason I think you will find that there is a necessity within that twelve month period that the Supreme Court has granted that we will bring forward legislation, and amendments that will address what we think are significant harms that flow from prostitution.
You recently launched the Stop Hating Online Initiative, the Government of Canada’s cyberbullying awareness campaign. Can you explain how this departs from the current strategy of dealing with cybercrime and cyberbullying?
I wouldn’t say it departs, I would say it enhances previous attempts to protect Canadians, and particularly young people, from online crime, intimidation, and hate. We’ve brought in legislation (Bill C-13, Protecting Canadians from Online Crime Act) but also embarked on a very rigorous cross-country public awareness campaign. We’ve drafted new legislation that criminalizes the non-consensual distribution of intimate images, which is a specific gap that had to be filled in the Criminal Code. But we’ve also enabled police, with judicial authorization (so they have to get warrants), to be able to more effectively police the internet. In essence, to give real meaning and enforcement to some of the online crime that we feel is very dangerous, and we’ve seen the effects, tragically, in cases like Rehtaeh Parsons, Amanda Todd, and others.
We’re working actively with partners, the public, the private sector, NGOs, educators, young people, and parents to raise awareness about everyone’s responsibility when it comes to addressing bullying and cyber-bullying. We think that it’s going to require a broad, holistic approach. It can’t just be done by amendments to the criminal law. It’s going to require a very active effort to get people more involved and more aware, so we’ve done other things like put up the Get Cyber Safe website. There’s a Need Help Now website that helps address some of these practical issues about how you remove the offensive material, how you reach out and get help, and stop some of the bullying that’s been going on. And we’ve put the resources behind it: $10 million to crime prevention projects, we’ve put money behind this public awareness campaign, and we’ve engaged a lot of very interesting and capable people to be part of the campaign.
Would you consider asking the provinces, who have jurisdiction over education, to implement this public awareness campaign into their school curricula?
They’re already involved and we had representatives of the provinces at the launch, but you’re right to suggest that education programs themselves are key to this. There are further efforts that can be made. It will be up to the provinces to decide what, if any, criteria changes might occur. We’re certainly working very closely, and we’re very interested as to how we can collaborate to get this message into the schools. We think that that is a critical component to stopping cyber-bullying.
What are the benefits of mandatory victim surcharges?
It’s a source of revenue for victims’ programs across the country. It’s money that goes to help support victims. It’s also a clear recognition of the importance of respecting [victims], including them, and the recognition of the harm done to them. We know that the way our criminal justice system works that, even the way criminal charges are filed – the Queen versus [the accused] – it is meant to send the signal that society and the government are acting on behalf of the victim.
But it’s also important that victims themselves are recognized and acknowledged. We’ve made it a priority as a government to give victims a stronger voice in the justice system. The victim fine surcharge is used to support victim services in provinces and territories. It makes the administration of justice more responsive and, quite frankly, more fair, which are fundamental principles in the administration of justice.
Mandatory victim surcharges have been publicly disregarded by a number of judges, including some who issue fines of below $1 to create a surcharge of $0.30. What will the government do if judges continue along this path?
We’ve legislated in this area and there is the Victims’ Bill of Rights which will be tabled in Parliament in the very near future. We hope to close loopholes that judges in fact have, in limited cases, exploited. The sad reality is that victim fine surcharges have been routinely waived for a long time, going back to when they were first introduced.
I can certainly recall to my dismay, as a prosecutor, seeing them routinely waived out of hand without making any inquiries in most cases as to the ability that the offender had to pay, which are in most cases very modest contributions. It’s 30% of a fine or, in cases of summary offences $100, or $200 for indictable. By the way those amounts haven’t been changed in over fifteen years. So we’ve made them mandatory. It’s our intent that judges respect the law and administer the law, and in most provinces they have something called the Fine Options Program, so that if an offender upon examination by the court [is determined] that in fact they have no ability to pay, and it is unlikely or the hardship is so extreme that there is no likelihood that they will pay the fine, there are fine options. They can do public service, they can do work in lieu of that fine. And the judge also has the ability to give an extended period of time. So we’re committed to ensuring that offenders are held accountable, that the safety and security of law-abiding Canadians is first and foremost, in courtrooms and in our justice system.
What do you think in general about judges speaking publicly about the policy of the government?
If they’re sitting currently on the bench they’re certainly entitled to their private opinions, but it runs rather contrary and against the grain for judges to be publicly out there presenting themselves on policy matters. It is unprecedented to see what we have had occurring recently where judges are very openly flouting the law, and it also is very insulting to victims themselves when judges appear to be, quite frankly, disrespecting them by waiving these victim fine surcharges or putting in place inappropriate sentences. Now, having said that, there’s also the ability of Crown prosecutors to launch appeals, but that is not for the Minister of Justice to direct. Those decisions are made at arm’s length from my office.
In relation to the appointment of Justice Marc Nadon, why has the government taken the approach that it can unilaterally amend the Supreme Court Act to allow federal justices to take the Quebec seat? Are you worried about harming relations with Quebec?
We’re always worried about relations with provinces generally. Let’s be clear, we have not amended the Supreme Court Act, we have put forward what is clearly intended to clarify the existing legislation. It is an accepted practice that in circumstances such as these you can go back and make a declaratory amendment designed to give greater understanding and shed light on the original intent of the bill. And there is Supreme Court of Canada precedent for doing just that, and what we have done here is simply state what we believe was the original intent: that all provinces, including Quebec, would be treated the same, would be treated equally when it comes to the appointment of Supreme Court judges.
We want to ensure that the Quebec Bar Association and jurists are in fact able to present the largest pool of eligible individuals for the Supreme Court of Canada. We have, as an example, a sitting Supreme Court judge now and some previous judges who came from the exact same pool that Justice Nadon is coming from, the Federal Court. So to deny Quebec the ability to have one of their own who happens to be a Federal Court judge, we feel would be unfair. That is the basic principle we’ve taken in making this declaratory provision while at the same time consulting with the Supreme Court of Canada for its own judgment on the eligibility criteria.
NOT CRIMINALLY RESPONSIBLE REFORM ACT
David Parry of the Canadian Bar Association says that the creation of the new high-risk category in the proposed Not Criminally Responsible Reform Act is too punitive. He says that the objective should not be punishment because the accused has not been convicted of a crime. Can you comment on that?
I would comment this way: in some cases, not all, there have been violent offences perpetrated while not meeting the definition of a criminal offence because of the person’s mental state. The victim certainly has been violated and harmed, and society and that victim have to be protected. What we’re talking about here is separating that individual from society, but in a secure medical facility where they’re receiving treatment. While I respect the opinion of others on this subject matter, I’ve prosecuted cases that involved not criminally responsible, and this requires a high degree of cooperation with the psychiatric and mental health profession.
It’s my fervent belief that by creating this new category of high-risk offender, it allows us to focus on those who are capable of violence. It helps to de-stigmatize others who may be suffering from mental health issues but are not violent. This special category allows us in many cases to help address some of the misnomers and misunderstanding that all persons suffering from mental health issues are certainly not considered a danger to the public, while some sadly are.
For those labelled high-risk, the proposed NCR Reform Act would allow review board hearings to be held every three years instead of annually. What prompted this change?
There have been a number of high profile cases, not the least of which is the case involving Vincent Li, who beheaded an innocent young man named Tim McLean on a Greyhound bus in Manitoba. That type of extreme violence, while we shouldn’t ever have a knee-jerk reaction, does demonstrate the degree of violence that can occur from a mentally deranged person. And so the necessity to ensure in all cases the proper decision is arrived at before somebody is released, sometimes, not in all cases, necessitates a longer period of observation, in getting the medication right and the treatment program in place. In some cases this was happening at an accelerated pace, and so it doesn’t suggest that it’s mandatory in every case but the longer period of observation in extreme cases, those involving violence, we think is necessary to protect the public.
Under the Department of Justice Act, you as the Minister are obligated to analyze bills that may be inconsistent with the Charter and report to the House of Commons. Last year Edgar Schmidt stated that the Department of Justice only reports to you if there is a 95% chance of inconsistency. What is the current practice used and why is it appropriate?
That percentage is not correct. We do a 100% analysis of all legislation for its Charter compliance, and that is done in every case. Others may disagree with the conclusion that the Department comes to, but I can assure you we have a very rigorous examination of all bills before they’re presented to the House, and that is part of the calculation and consideration that goes in to the tabling of bills.
As you make a decision, there are a number of factors you likely need to consider, like precedent, political factors, public opinion, interest groups, and Cabinet. What are the various pressures placed on you while making decisions and how do you balance them?
All of those that you mentioned, and not to mention your own personal moral compass and those who you’re closest to, your family and friends. It does require a very careful weighing of those sometimes competing interests in coming to decisions on a whole range of issues and daily decision points that you encounter in this role. I must say coming over from the Department of National Defence (DND), it’s a very different department, in that it is much more cerebral as opposed to operational. Yet, we are in many cases dealing with the same urgency and time pressures that DND also encounters. I find the role very challenging. I’m fortunate in that I’m very well served by people in the Department of Justice, some highly intelligent, capable people, including my Deputy Minister. I’m grateful for that support because it requires a great deal of collaboration and I know that the decisions that are taken by a minister have far-reaching implications.
You’ve recently become a husband and a father. What impact has that had on your political career and how do you handle work-life balance?
The impact has been enormous and immediate, and it has been perhaps the most transformative sequence of events in my life. I’m so grateful for both my wife and my son. And it has changed your perspective; inevitably you see things much differently. I think there’s a natural protective instinct that starts to come out more regularly and it’s more prevalent. To balance the time with them and the amount of space that occupies in my calendar, I simply had to become more disciplined and make decisions about what is truly a priority. To seek that elusive balance, it’s like a lot of occupations that are busy and require travel. You do your best to include your family in events when appropriate, and it requires a lot of patience on their part. As my son gets older I know that those demands will grow even more. It requires choice, and I hope and try daily to make the right choices for them and for the demands of this occupation.