The Election

REALITY CHECK GETTING TOUGH MAY JEOPARDIZE RIGHTS OF DEFENDANTS

The statement: "The revolving door of criminal justice of this
current government bears significant responsibility for the tide of
gun, drug and gang crime plaguing our cities." Stephen Harper,
campaigning in Toronto, blames the Liberals for being soft on crime.

The message: People accused of crimes have it too easy, and
defendants need to face tighter controls over their bail conditions,
and tougher sentences.

The reality: Many lawyers think the rhetoric swirling around the
election campaign could damage the rights of defendants facing
charges in Canadian courts -- even before any laws are changed.

"There's no doubt that the rights of defendants will be seriously
affected," said prominent criminal lawyer Edward Greenspan. In the
current environment, he said, "there is a risk of innocent people not
getting bail or not getting a fair trial." Politicians are looking
for a quick fix for a problem that has been simmering for years, and
in any event, gun violence in Canada is "much overstated," he said.

While judges have a reputation for remaining above the fray and
applying the existing laws fairly, the intensity of debate could
affect their decisions, said Michael Tammen, a criminal lawyer at
Harper Grey LLP in Vancouver.

Judges will not consciously be influenced, he said, but there could
still be an impact.

Alan Young, a professor at Osgoode Hall Law School in Toronto, agreed
that judges could be affected by the debate, and by opinion polls
that show many people think they are too lenient.

"With the focus right now on gun violence, most judges don't want to
be scapegoated as being part of the problem," he said. The key
proposals that have been floated during the election campaign are for
an increase in mandatory minimum sentences for gun crimes, and
changes that would require defendants in gun crimes to demonstrate
why they should get bail -- the so-called reverse-onus provision.

Mr. Young said the reverse-onus change would have only a marginal
impact on the rights of the accused, because it would just make it a
little harder to get bail.

Winnipeg lawyer Saul Simmonds said very serious sentences are already
being handed out for most gun crimes, and he described the proposals
as a "knee-jerk reaction," even though fears are understandable.

Some lawyers support the proposed changes, however.

Michael Code, a prominent Toronto criminal lawyer, said there are
"good policy arguments" for strengthening mandatory minimums for gun
possession, if it is clear the accused was planning to use the gun
for a crime. There is also some justification for broadening the
scope of reverse-onus laws to include more gun crimes, Mr. Code said.