Conservatives’ misguided get-tough-on-crime agenda | John L. Hill

By John L. Hill

Law360 Canada (August 3, 2023, 12:24 PM EDT) --
John L. Hill
John L. Hill
Justice Minister Arif Virani had been in office less than a week when he came under attack by the Conservative opposition. The press release issued by Conservative spokespersons included the following: “Justin Trudeau’s catch-and-release policies have unleashed a crime wave across this country. Canadians don’t feel safe in their communities and on their streets. But Arif Virani, Trudeau’s new Justice Minister and Attorney General is telling Canadians this is all just in their heads, and that an increase in crime is ‘empirically unlikely.’

“Canada wasn’t like this before Trudeau, and it won’t be like this after he’s gone. We will end Trudeau’s catch and release policies and keep the small number of dangerous repeat violent offenders in our country where they belong — behind bars. We will fix the problem Trudeau started with his flawed bills like C-75 and C-5, that let dangerous repeat violent offenders out onto the streets and back into our communities. Only common-sense Conservatives will bring home safe streets.”

Obviously, the statement plays to a population where news coverage of shootings in the United States has soared and reports of gun violence in Canada spurs notions that a crime wave could become a tsunami. What the press release fails to take into account is that it will take more than a “lock ’em up” policy to restore a sense of calm to a public that feels crime is out of control.

Unfortunately, the adage that our bail courts are playing “catch and release” is a dog whistle for the view that police should be given freer rein. The recent case of R. v. Karapetrov 2023 ONSC 4354 allowed a suspected drug trafficker to walk free because police had acted in contravention of the accused’s common law and Charter rights. We have seen in R. v. Francis 2023 ONCJ 242 that winking at police overstepping the law regarding racial profiling serves to heighten fears in our racialized communities. The law is quite clear: Racial profiling is so pernicious that if it infects any part in the selection or treatment of a suspect, police conduct cannot be upheld (R. v. Dudhi 2019 ONCA 665, R. v. Le  2019 SCC 32 and R. v. Sitladeen 2021 ONCA 303).

The spillover of this loosened attitude that police ought to be given substantial deference was visible once again in Napanee’s Ontario Court of Justice on July 28, 2023, when Justice Geoffrey Griffin sentenced Correctional Service of Canada officer Donald (Blair) Kay to 12 months probation and 60 hours of community service for assaulting a Black Millhaven inmate, Christopher Lewis, with a gun.

The report of this attack on an inmate was reported in the July 31 issue of The Kingstonist. The report suggests that Kay will continue his work at the maximum-security institution and be able to carry a firearm while so employed. To be fair to Justice Griffin he did not go so far as to accede to the defence position of a discharge. Instead, he recognized that any penalty would serve as a warning that the highhanded abuse of inmates must be prevented.

Racism is definitely at the heart of many of our social ills. Let’s deal with that rather than shutting our eyes and reacting as if we live in the Jim Crow South.

It is simplistic and shortsighted to convince the electorate that a “get tough on crime” policy will make us all safer. Every city, town and village has a problem with drug abuse and homelessness. Such social problems set up a milieu where crime may fester. But these social problems require intelligent and concerted solutions from every level of government. But it is easier to blame the country’s social ills on a new minister than it is to advance policies that will truly make a difference.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at

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