The second quarter of 2017 saw some terrific examples of how great policy ideas, well communicated, can help inform the thinking of policy makers and opinion leaders. In the quarter, our work made a significant contribution to two important reports by parliamentary committees, on justice system reform and human rights, and our expertise was highly sought after on how the environmental assessment process can better meet the needs of Indigenous peoples.

Justice system reform

The exhaustive review of inefficiency in the justice system conducted by the Senate Standing Committee on Legal and Constitutional Affairs resulted in a thorough report, released in June 2017, which drew heavily on MLI’s expertise. Scott Newark, author of the 2016 MLI report “Justice on Trial”, advised Senator Runciman closely on the process, and both he and Rick Audas, co-author of the 2016 MLI “Report Card on the Criminal Justice System” testified before the committee. MLI’s contributions were frequently referenced in the report, and select quotations are included below. And the table that follows reveals how closely the report’s recommendations reflect MLI’s ideas.

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References to MLI in the Senate report:

“The committee discussed Statistics Canada’s data with Richard Audas and Scott Newark, authors of recent Macdonald-Laurier Institute reports, which used this data extensively for their research assessing the performance of Canada’s justice system. Mr. Audas’ report, co-written with Benjamin Perrin and titled Report Card on the Criminal Justice System: Evaluating Canada’s Justice Deficit, concluded that the Canadian justice system is slow, inefficient and costly and that Canada is suffering from a “justice deficit”: a large and growing gap between the aspirations of the justice system and its actual performance. Mr. Newark’s report, Justice on Trial: Inefficiencies and Ineffectiveness in the Canadian Criminal Justice System, “provides a data-based analysis of relevant issues concerning inefficiencies and performance in the Canadian criminal justice system. It also explores related criminal justice system issues including corrections, crime rates and legal aid spending, and offers a number of recommendations to enhance systemic performance and public safety.” (page 29)

"In reflecting upon the quality and sufficiency of the available data, Mr. Audas said, “I think that while Statistics Canada does a tremendous job in collecting the data, it's not as easy to access it and then to interpret it ... we're only able to analyze the data available to us.” He added that better data is needed to create indicators that can be used to assess and improve performance management within the justice system. In particular, he explained that we know little about repeat offending and recidivism, victimization, accused persons who self-represent and alternative dispute resolution.” (29)

“Mr. Newark expressed similar concerns about the need for better data, but also said the data needs to be properly analyzed in order to “introduce a measure of systemic accountability that is... significantly lacking in our justice system” and “because it helps to make informed policy decisions.” He also mentioned that there is a need for more inter-governmental cooperation in collecting data since not all current data systems are compatible, in particular in relation to justice, health care and social services.      The committee agrees with Mr. Audas’ views on how crucial it is to have complete data, to interpret it, and use it to point to inefficiencies in the justice system” (29-30)

“According to Scott Newark, author of the Macdonald-Laurier Institute report Justice on Trial: Inefficiencies and ineffectiveness in the Canadian criminal justice system, some of the requests for disclosure in impaired driving cases have been found by the Ontario Court of Appeal to be “frivolously being done and dragging things out and taking more time.” (58)

“Scott Newark, author of the recent Macdonald-Laurier Institute Report Justice on Trial: Inefficiencies and ineffectiveness in the Canadian criminal justice system, argued it would be valuable to have a review of various mandatory case resolution procedures to determine if they are producing results.” (79)

“As set out in the recent Macdonald-Laurier Institute report, Justice on Trial: Inefficiencies and Ineffectiveness in the Canadian Criminal Justice System, by Scott Newark (who also appeared as a witness), “[t]he high number of cases stayed/withdrawn may indicate over charging by police to encourage a plea bargain, which could contribute to delays.” Another report, published by the Macdonald-Laurier Institute and co-authored by Richard Audas (another witness) and Benjamin Perrin, says that “whether Crown prosecutors have to approve criminal charges, or whether the police can simply lay them on their own, can have a major impact on the proportion of charges subsequently stayed or withdrawn.”” (113)

“A key element of the necessary cultural shift is for professionals within the justice system to see drug addictions as a mental health issue and to recognize that the rehabilitation and recovery of mentally ill persons depend on their participation in the appropriate programs. This does not mean that incarceration should not be part of an appropriate sentence for a drug-related crime, rather than the traditional justice model on its own will not serve to address the real problem of their addiction, and therefore will fail to reduce recidivism. “Processing people [with drug problems] through the justice system,” explained Rick Audas, co-author of Report Card on the Criminal Justice System: Evaluating Canada’s Justice Deficit” (147)

“Once in the system, witnesses explained that there are other challenges faced by persons with mental health issues. Dr. Ahamad explained a concern raised by other witnesses that when a person with addictions is released from detention, either on bail, probation or parole, the conditions that are imposed are often unrealistic, such as abstaining from drugs or alcohol: “they are often being set up to fail.” Scott Newark noted that this was only a matter of time: [T]he longer they're on those bail conditions, the more likely it is that they are going to breach their bail conditions. If they are detained in remand, there is often no programming or support to help them with their health concerns.” (148)

“As noted earlier in this report, Rick Audas and Scott Newark, the authors of the recent Macdonald-Laurier reports on the justice system, underscored the need for better data and analysis thereof concerning recidivism and alternative dispute resolution.” (155)

“When recidivism occurs, this means that an opportunity to rehabilitate an individual has been lost. While discussing his Macdonald-Laurier Institute’s report, Justice on Trial: Inefficiencies and Ineffectiveness in the Canadian Criminal Justice System Scott Newark mentioned the value of considering repeat offenders when looking at delays: “I don't think we have done a very good job over the last 15 years in dealing with repeat offenders because one of the realities of our justice system is there is a disproportionately large volume of crime committed by a disproportionately small number of offenders. When you target those people, operationally or by policy, you can get significant public safety results.”” (171)

“Rick Audas, co-author of Report Card on the Criminal Justice System: Evaluating Canada’s Justice Deficit, commented that, in fact: “We know very little about repeat offending and recidivism. Again, those are two things we think are important to Canadians, and two areas where we think the justice system probably needs to do better, but the data allows us to say almost nothing at all about them.” As we recommended in Chapter Two, Canada needs better data on recidivism.” (172)

What MLI said and what the Senate report recommended

Topic MLI Report: Justice on Trial (September 2016) Canadian Senate Report: Delaying Justice is Denying Justice (June 2017)
Electronic monitoring Parole Board of Canada should be authorized to “order electronic monitoring of offenders on conditional release” Ministers should prioritize development and production of electronic monitoring mechanisms
Statistics StatsCan/Justistat (or institution involved) should publish more detailed reports regarding number of repeat offenses, deportations, unpaid fines, etc. Minister of Justice should take leadership and assist StatsCan in updating Integrated Criminal Court Survey. Stats should reflect “the number of cases in which a stay of proceedings has been ordered due to a violation of the right to be tried within a reasonable time”
Criminal Code Criminal Code should be reviewed by provinces and amended Federal government should assemble independent body to review Criminal Code and formulate prescriptions for modernization and reform
Preliminary Inquiries Criminal Code should include select hybrid offences with an option for a sentence of five years less one day, to reduce the number of cases requiring preliminary inquiry Minister of Justice should take steps to eliminate or reduce preliminary inquiries
Administration of justice offenses Corrections and Conditional Release Act should be amended to deal with administration of justice offenses Minister of Justice should prioritize the reduction of court time dedicated to administration of justice offences, including discussions with provinces and territories aimed at revising conditions for release
Diversion programs Detailed statistics should be reported indicating offenders’ histories with diversion programs, as well as average time required to arrive at diversion decision Minister of Justice should work with provinces and territories to promote/develop diversion programs, and contribute resources to ensure that data is collected regarding performance of diversion programs.
Legal aid Analyses must be carried out examining whether the use of full-time, salaried legal aid providers “contributes to expedited and appropriate case resolution”, in comparison to the use of private defence counsel Minister of Justice must “undertake a full-scale review of legal aid plans with a view to bringing access to legal aid up to acceptable levels across Canada”


Magnitsky legislation

In a major victory for those who want to see Canada take a hard stance against the world’s human rights abusers, in April 2017 the House of Commons foreign affairs committee issued a report strongly supporting Magnitsky legislation in Canada, named for Sergei Magnitsky, a lawyer who died in a Russian prison after exposing massive corruption.

MLI senior fellow Marcus Kolga played a key role in the creation of the report, arranging most of the star witness appearances including, Vladimir Kara-Murza, Zhanna Nemtsova, Bill Browder, Andrei Sannikov, Garry Kasparov and Thor Halvarsson, and Kolga also helped to draft the text.

In May 2017 Foreign Affairs Minister Chrystia Freeland formally announced the government’s support for passing a Canadian Magnitsky law.

Security and Defence

In June, MLI Munk Senior Fellow Christian Leuprecht appeared as a witness before the Senate Committee on National Security and Defence to provide expert testimony on Bill C-22, a bill to establish a National Security and Intelligence Committee of Parliamentarians.

Leuprecht was also invited in June to participate as a speaker at a summit held in Riga by the Latvian Institute of International Affairs on the topic “NATO – from Warsaw to Brussels. Future of the Alliance and the Enhanced Forward Presence”.

Canada’s political tradition

In April, MLI Munk Senior Fellow Sean Speer was invited to participate in a high-level round table discussion hosted by Hon. Karina Gould, Canada’s Minister of Democratic Institutions for Canada, at Ryerson University in Toronto. At the meeting Speer shared his insights with the Minister on "civic literacy" and democratic reform. He spoke about the role of parliamentarians, and he emphasized the importance of MPs in the annual budget process and discussed ways to make it more accessible and accountable. This builds on MLI’s contribution to persuading the government to restore Parliament’s role in approving annual government borrowing in the 2016 budget.

Environmental assessment

In April, 2017, Bram Noble, author of the MLI series “Aboriginal People and Environmental Stewardship” was invited to present to the International Association for Impact Assessment Panel on the Practical Implications of the UN Declaration on the Rights of Indigenous Peoples for Canadian EA. The panel was co-organized by the Canadian Environmental Assessment Agency and the BC Ministry of Environment. Noble’s presentation was based directly on the second paper in the MLI series, and focused on snapshots of meaningful indigenous participation in EA and what has worked.

Also in April 2017, Noble was an invited participant in a workshop with a small group of academics from around Canada to provide feedback to Canadian Environmental Assessment Agency on the Expert Panel’s report on the National Energy Board which was released the previous day, and to discuss implementation of the recommendations. Noble has worked closely with the CEAA throughout this process and the CEAA is strongly supportive of MLI’s findings and recommendations.

The Expert Panel’s report itself, and a subsequent publication from the office of the federal Minister of Environment and Climate Change both supported the two key recommendations from Noble’s series: That project proponents must engage Indigenous communities much earlier in the process than they have traditionally; and that regional assessments are a promising tool to make EAs for individual projects more effective and efficient.

Finally, on the EA file, Ken Coates gave a talk on Indigenous engagement in Environmental Stewardship at the BEST (Bettering Environmental Stewardship and Technology) 2017 conference hosted in May in Whistler by the British Columbia Environment Industry Association.