Poilievre's 'three strikes' crime law could face constitutional challenges, London lawyers say
A plan by Conservative Leader Pierre Poilievre to introduce a "three strikes, you're out" policy to deal with violent repeat offenders would be expensive, ineffectual, and likely face constitutional challenges, several London-based criminal defence lawyers say.
During a campaign stop Wednesday in Sault Ste. Marie, Poilievre said those convicted three times for serious offences would be ineligible for bail, probation, parole or house arrest, and given a minimum sentence of 10 years in prison.
They would also become a designated dangerous offender under the Criminal Code, and couldn't be released "until they have proven that they are no longer a danger to society."
Freedom, Poilievre said, would only come through "spotless behaviour and clean drug tests during a lengthy minimum prison sentence, with earned release dependent on making real progress in improving their lives such as learning a trade or upgrading their education."
Poilievre also said he would also bring "life sentences for human traffickers, for gun smugglers and for mass-fentanyl producers."
Defence lawyer Cassandra DeMelo, a partner at DeMelo Heathcote, said three-strike policies like those seen in the U.S. fail to address the root causes of crime.
The legal fights and constitutional challenges the law would bring would be expensive to taxpayers, she said, along with housing more people for a minimum of 10 years. Correctional Service Canada figures show it costs $430 per day, or $156,000 per year, to house one federal inmate.
"It's a big game to talk to say that you're just going to pass through these laws and throw away the key, but we have constitutional rights as Canadians, and those are important rights. Those are guaranteed freedoms and protections," she said.
Plan goes against Charter, says lawyer
Nick Cake, a defence lawyer and former Crown prosecutor, argued it would only increase the prison population and taxpayer dollars spent on corrections.
It would also exacerbate existing pressures on the system, especially if more people are automatically deemed dangerous offenders and held indefinitely, he said. Currently, dangerous offender applications undergo a rigorous legal process.
With a mandatory 10-year minimum, there would also be no motivation for plea bargaining, potentially leading to more trials, he said.
He argues Poilievre's plan to remove bail eligibility, which comes before a conviction, would go against the Charter, which "allows everyone the right to reasonable bail, no matter what the charge." He adds that doesn't guarantee bail will be granted.
Asked whether he would invoke the notwithstanding clause to pass his proposed laws, Poilievre argued his proposals were constitutional.
For Kevin Egan, a London lawyer who served as counsel on a class action over conditions at London's jail, recidivism, or the tendency for criminals to reoffend, means the correctional system isn't rehabilitating and reintegrating offenders back into society like it's supposed to.
"If he really wants to get tough on crime, fight the root causes of crime," Egan said. "They've run afoul of the law because of conditions of their own lives, whether they're born into families with substance abuse problems, whether they're abused as children."
LISTEN: London lawyer reacts to Poilievre's 'three strikes you're out' proposed policy
The John Howard Society of Canada, which advocates criminal justice reform, said among the issues it has is the 10-year mandatory minimum, which they say removes judge discretion in sentencing.
"We feel judges are best placed to look at individual cases … and proportionate penalty," said Catherine Latimer, its executive director. She noted several mandatory minimums enacted by previous governments were then later struck down in court.
"Way too much time and human resources are wasted on these failed approaches that keep being trotted out. I think they have some popular appeal, but they're not credible or effective," she said.
A Liberal government bill, Bill C-5, ended mandatory minimums for drug convictions and some firearms and tobacco-related offences, and expanded availability of conditional sentences.
Poilievre has blamed that bill, and Bill C-75, for increasing violent crime, calling them "hug-a-thug, catch-and-release Liberal policies."
The Conservative party said "serious offence" includes violent and fentanyl-related offences and primary designated offences under the Criminal Code — offences Cake argues are already taken seriously.
"If you commit your third sexual assault, you're very likely to be going to the penitentiary for a double-digit term anyway," Cake said.
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With files from John Paul Tasker and The Canadian Press