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Liberals Are Starting to Dismantle the Conservatives' Legal Legacy in Canada

Under former Canadian prime minister Stephen Harper, refugee benefits were slashed, voting rights were curtailed, and new tough-on-crime legislation sailed through the House of Commons.

by Lauren Heuser
Nov 9 2015, 3:55pm

Adrian Wyld/The Canadian Press

Justin Trudeau rode to power in Canada on a promise of change — and there are already signs his Liberal government intends to dismantle aspects of the legal legacy of his Conservative predecessor.

Under Stephen Harper, refugee benefits were slashed, voting rights were curtailed, and new tough-on-crime legislation sailed through the House of Commons.

Just this weekend, newly sworn-in Justice Minister Jody Wilson-Raybould said in a televised interview that her ministry will review the use of mandatory minimum sentences brought in under the Conservatives. She noted her desire to look more broadly at the criminal justice system in terms of rehabilitation, "not just simply being tough on crime."

Prior to Wilson-Raybould's appointment, the Justice department had requested an indefinite adjournment of legal actions challenging controversial Conservative legislation that made it possible for the government to strip the citizenship of foreign-born convicted terrorists. The department noted that it was seeking direction from Trudeau, who has promised to scrap the law, Maclean's magazine reported.

And before that, a court adjourned a case challenging a different lightning-rod policy — the Tories' 2012 decision to scale back healthcare benefits for failed refugee claimants and refugees from countries that the government deems to be safe. The previous government maintained basic care, but eliminated supplementary benefits such as dental and vision coverage. Those cuts are unconstitutional, according to a court ruling last year that found them to be discriminatory and to constitute "cruel and unusual punishment".

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Ottawa's appeal of that decision was scheduled just after the October 19 election, but federal lawyers obtained a deferral and a new date for the hearing has not been set.

Janet Dench, executive director of the Canadian Council for Refugees, expects the new government to drop the appeal, since the Liberals have committed to restoring healthcare benefits for refugees. Indeed, the new immigration minister, John McCallum, went on television and the radio this weekend to say that the decision to fully restore healthcare to refugee claimants was a "no brainer" and promised swift action on the file. 

Dench is also hopeful that the Liberals will dismantle "the huge number of changes" made in the refugee area in the past five years. But the council is "aware that it's not something that can be undone in a short period of time, even if the will is there."

The Tories were also criticized in liberal circles for their tough-on-crime agenda. Between 2005 and 2015, the federal prison population increased by 14 percent, even though crime rates have declined each year for the previous 11 years, says a Canadian Centre for Policy Alternatives report.

Some of the 60-odd pieces of criminal legislation brought in by the Conservatives since 2006 were struck down by the courts during their tenure. And others may see the same fate.

The Supreme Court of Canada, for example, is already scheduled to hear a challenge to a law that removes judges' ability to grant convicted individuals extra credit for time spent in custody. And in January, the court will hear a challenge to a law which imposes mandatory minimum sentences for individuals who have a prior record for drug offenses, and who are convicted of trafficking in a number of listed drugs, including cocaine, meth or marijuana.

Related: No One Seems to Care About Prison Reform in Canada

But if the Liberals are to make broader changes in the justice area, they can't rely only on the courts.

The Tories did not just implement mandatory and harsher sentences, observes Christine Latimer, executive director of the John Howard Society of Canada, a prison reform advocacy organization. It also introduced a "slew of legislative amendments and policy changes that made prisons more punitive and moved away from correctional objectives."

The criminal system is "now dysfunctional," she says, due to factors such as overcrowding, a failure to meet the health needs of prisoners, and a lack of rehabilitative efforts. Her group believes that comprehensive prison reform will be required to ensure that rights are respected and that prisoners are afforded opportunities to transform their behavior and safely reintegrate into the community.

In a Sunday interview with CTV News, Wilson-Raybould, the justice minister, did not specify how the Liberals might change the mandatory minimum legislation.

"I recognize the need to empower judges and to uphold the discretion that judges have in particular circumstances, and (will be) looking more fundamentally or broadly at the criminal justice system in terms of restorative justice and rehabilitation," she said. "Not just simply being tough on crime."

The Liberals haven't always been on the opposing side of Conservative legislation, though. They backed Bill C-51, the controversial anti-terrorism law that many saw as infringing on civil liberties. During the election campaign, they promised to amend it, if elected, but didn't provide details on how, exactly.  

Tom Henheffer, executive director of Canadian Journalists for Free Expression, one of the parties challenging the new law, says his organization is "attempting to enter talks" with the new government about repealing the act or amending specific provisions of it. Henheffer said that if the party doesn't seem prepared to carry through on its promise, the court challenge provides them with "grounds to fight this battle."

Follow Lauren Heuser on Twitter@laureneheuser