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Justice minister’s blogs reveal her views on major legal issues

Thursday, November 19, 2015 @ 7:00 PM | By Cristin Schmitz


Before she made history this month as Canada’s first indigenous justice minister, Jody Wilson-Raybould set out her views on many issues now falling into her bailiwick.

The 44-year-old ex-Crown and University of British Columbia law graduate, who was sworn into the Liberal cabinet Nov. 4, is a senior Aboriginal leader with 15 years at the bar. Her writings disclose a thinker who engages — and goes back to first principles — with a variety of thorny legal and public policy issues. Her election period blogs, and public comments, reveal opinions on an array of legal matters she now confronts as the federal government’s chief legal adviser, and a key member of Justin Trudeau’s cabinet.

One area in which the legal community can anticipate “real change” (as per her party’s election slogan) is criminal justice. After five years as a front-line provincial prosecutor in Vancouver’s downtown eastside — and her first-hand observation of the contribution of the Indian residential schools regime to the high incarceration of Aboriginal Canadians — Wilson-Raybould is no fan of the former Conservative government’s signature ‘tough on crime’ approach, as it was expressed through more jail time and mandatory minimum penalties.

Instead, she advocates for evidence-based criminal justice policy, including upholding judges’ sentencing discretion, and looking at crime and punishment from multiple perspectives, including Aboriginal restorative justice.

“I think it’s important to ensure that…we have a criminal justice system that is smart, and is looking more at rehabilitation, at prevention,” the Vancouver-Granville MP told The Lawyers Weekly before she joined the cabinet.

The new government will take a different direction than its predecessor on criminal justice, she affirmed. “I think there is a lot that we can do.”

Top of her to-do list is consulting with Canadians and crafting a constitutionally sound approach to assisted suicide while facing a tight deadline from the Supreme Court, which invalidated the law earlier this year.

Wilson-Raybould will also advise Public Safety Minister Ralph Goodale and the cabinet on the constitutional parameters for revamping Bill C-51, the predecessor government’s anti-terrorism law, which security experts and many law groups contend is constitutionally suspect and counterproductive.

Wilson-Raybould has forcefully expressed her view that C-51 does not strike the right balance between public safety and Charter-protected freedoms. “Security must not run roughshod over the fundamental tenets of our democracy,” she blogged.

With respect to Bill C-51, she emphasized “the critical need for accountability, review and oversight mechanisms, as well as narrowing the broad definitions (i.e. ‘activity that undermines the security of Canada’).” She also endorsed the stance of the Canadian Bar Association and others that “there is a need for fulsome debate about how far we are prepared to go as a country to limit individual freedoms in the name of national security. Any bill, and particularly a bill of this nature, should not be rushed. Policy should not be driven by fear…I know this bill does not have the balance right and leaves far too much to the interpretation of those with power or exercising discretion. Oversight is required.”

Wilson-Raybould also blogged that she was “deeply troubled” by some of the predecessor government’s rhetoric and reforms in the areas of immigration and refugees. “As a nation of immigrants, it is frightening when any government draws arbitrary lines between classes of people to further political objectives, as the Conservative government has done in recent years,” she wrote.

“Although terms like ‘old stock Canadian’ may seem laughable for their absurdity, we must check our laughter so as not to underestimate the insidious danger of such terms and policies rooted in xenophobia, ignorance and personal quests for power,” she wrote after former prime minister Stephen Harper said in a debate last September that “existing and old stock Canadians” approved of his government cuts to the health care of failed refugee claimants. “Mr. Harper has sought to divide Canada by creating the illusion of the ‘other’— an approach recycled by politicians throughout world history, who have chosen to rely on politics of fear as a distraction from a dearth of meaningful policy or a weak or failing economy.”

In particular Wilson-Raybould deplored Bill C-24’s “two-tier citizenship” (which the Liberals have vowed to repeal) that enables Ottawa to revoke a dual citizen’s citizenship (including those born in Canada) if they have been convicted of certain crimes. “Basically all that is necessary to rob a citizen, and by implication their descendants, of their home and their country, is the decision of a politician made under a bureaucratic process,” she wrote. “These draconian powers do not strike the necessary balance between the protection of our security and the protection of our fundamental freedoms.

“Equally disturbing,” she continued, was the denial of Zunera Ishaq’s religious freedom to wear a niqab while swearing the citizenship oath, and that “when the courts of this country repeatedly direct the Conservative government that such policies are counter to the fundamental laws of Canada, Mr. Harper continues to finance doomed legal battles with taxpayer money in order to deny Ms. Ishaq the right to vote in the upcoming election and to use her plight as his own personal political fodder.”

Wilson-Raybould is a member of B.C.’s We Wai Kai Nation who spent six years as regional chief of the Assembly of First Nations before federal politics. “Good decisions, policy and laws are born out of dialogue, inclusivity and informed debate,” she wrote.

She advocated consideration of “advancing our maturing democracy through embracing appropriate measures of electoral reform, including proportional representation and mandatory voting. Democratic reform and renewal of our institutions may not be sexy, but it is incredibly important.”

Wilson-Raybould criticized the Harper government’s “attacks” on government watchdogs and “the integrity of the Supreme Court of Canada and Chief Justice Beverley McLachlin, which is an assault on one of the most important and fundamental institutions of our constitutional democracy: the independence of the courts.”

On reconciliation between Aboriginals and Canada, the new justice minister has said the Liberals must “move forward with vigour” on their sweeping commitment to implement all 94 recommendations of the Truth and Reconciliation Commission (see story “First Nations Liberal MP wants quick action,’ The Lawyers Weekly, Nov. 6, 2015, p.4)

She argues that legal and political mechanisms must be implemented now to facilitate Aboriginal self-governance. There must also be “an overarching cross-government reconciliation framework that would guide all departments and ministries, and be supported at the highest levels of the prime minister’s office,” to put into operation “what has been directed by the courts and set out in the UN Declaration on the Rights of Indigenous Peoples,” she wrote.

Wilson-Raybould will advise the cabinet on how to implement the Liberals’ pledge to create a “new fair process that will restore robust oversight and thorough environmental assessments.” She argues that in order to implement an effective strategy for developing natural resources, including oil and gas, “we need to have a more robust conversation about what we mean by sustainable resource development for the future. We need to invest in science and research. And we need to have openness, transparency and clear rules surrounding environmental assessment and the approval for major projects. Moreover, unlike the past, Aboriginal governments are going to have a greater say, and it is unlikely major projects will proceed unless Aboriginal interests are taken into account.”

In balancing the responsibility to protect the environment, with the need to grow the economy, “a strong economy is a means to an end and not an end in itself,” Wilson-Raybould wrote. “It must lead to a better quality of life for all Canadians. Economic policy must be tied to social policy that speaks to the type of country we want to live in. We cannot ignore how our economy impacts the physical and social environment.”