Rethinking Criminal Justice in Canada

Reforming the criminal justice system has been the subject of intense political debate in Canada in the past decade. Competing ideals related to rehabilitation, punishment and fairness have led to markedly different policy approaches and sharp disagree­ments among political parties on the best way forward.

The Government of Canada has made reviewing the criminal justice system and sen­tencing reform a top priority in justice policy. The mandate letter presented to the Minister of Justice clearly states that a review should be conducted to “ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the crim­inal justice system.”

Of course, such a review cannot be conducted in a vacuum. Changes to the criminal justice system can have wide-ranging implications for the individuals who come into contact with it, as well as for their ability to access social services and other supports. Indeed, criminal justice interacts in complex ways with myriad other social systems such as health, in­come support, child care and housing. The review must take this reality into account and limit the potential for unintended and harmful consequences for offenders, victims, their families and communities.

As part of the review of the criminal justice system, four round table discussions were held — in Halifax, Montreal, Toronto and Edmonton. They brought together academics, community leaders, social policy experts, jurists and other actors in the criminal justice system for a focused discussion on the interaction between the criminal justice system and other social systems.

In sum, the roundtable participants suggested that the review should achieve the following:

1. Acknowledge that fundamental reform is needed.

The clearest message coming from the round tables is that the criminal justice sys­tem needs fundamental reform, which may take several steps to achieve. The review should identify reforms that can be implemented immediately in order to ease the burden on the criminal justice system and provide better support to individuals being served by it, but also acknowledge that this is a long-term process. The review should identify the end goal of the reform and situate this first stage in that longer-term process.

2. Articulate values and principles that should guide the criminal justice system in the 21st century, including how they relate to punishment and rehabilitation.

The review should consider what values should drive Canada’s criminal jus­tice system in the 21st century, and how they might differ from those of the past. These updated values, and the changes in the system’s behaviour they are expected to bring, should be clearly articulated in the resulting reform.

3. Acknowledge that individuals are a product of their surroundings and invest in preventive measures.

The review should aim to identify the “social determin­ants of justice” and prioritize non-intrusive programs to prevent negative justice outcomes. Too often there are early signs that certain individuals could potentially find their way to the criminal justice system.

4. Acknowledge that the criminal justice system has a more negative impact on certain demographic groups and address the specific needs of those groups.

As one participant put it, the criminal justice system is demonstrably not blind to iden­tity, so perhaps its treatment of individuals should also accommodate difference.

5. Acknowledge that systemic racism exists, and outline specific steps that can be taken to remedy it.

The review should document the many ways in which the criminal justice system dis­advantages certain groups — including, but not limited to, Black and Indigenous Can­adians — and devise strategies to rectify the system’s behaviour.

6. Consider increasing the use of alternative and restorative justice programs.

The review should aim to reduce incarceration rates — in general and those among specific demographic groups — by promoting alternatives. This should include an inventory of tools at the disposal of law enforcement and the courts, but also an explicit statement on the legitimacy and desirability of their use as well as appropriate funding levels to support them.

7. Reconsider the structure of the criminal justice system and the interactions of the many actors involved by putting the individual at the centre.

Too often, reforms are considered from the perspective of specific jurisdictions, which leads to proposals that are assessed based on their impact on interveners, their man­dates and responsibilities. The review should reject that conceptual frame and consid­er reforms through the lens of the individual in the criminal justice system.

8. Aim to make the criminal justice system “smaller” and create more space for social system interventions.

Rather than bringing more social services and supports into the criminal justice sys­tem, the review should aim to reduce the system’s reach and allow for more individuals and more cases to be dealt with outside it. The goal should be to reduce the number of people who are entangled in the criminal justice system.

9. Be developed and implemented in full collaboration with the provinces and territories, as well as Indigenous leaders and governments.

The interdependence of criminal justice and other social systems requires collabora­tion not just among those who work in the system, but also among governments. Meaningful, long-term progress depends on it.

10. Include real public engagement to build trust in the criminal justice system and support for the reforms.

Building public support for the reforms will be crucial, especially if includes an exam­ination of the values and principles that underpin the criminal justice system. The re­view’s success will depend on how legitimate the reforms are seen to be in the eyes of the public.

11. Consider building a learning component into the criminal justice system through additional research capacity, information sharing and ongoing adjustments to the system’s behaviour based on best practices.

The reform should look at mechanisms that would allow the criminal justice system to learn from its own experience and adapt to changing circumstances.

Facing the Facts: Reconsidering Business Innovation Policy in Canada

The federal government’s main strategy to sustain economic prosperity in coming years is through innovation. Yet for decades, successive governments have attempted to promote business innovation and failed. Indeed, Canadian businesses have managed to be successful despite their poor innovation performance. This time may be different. Globalization, technology, sustainability concerns and population aging will inevitably impose a shift to innovation as a core business strategy. Hence the need for an ambitious and comprehensive innovation policy to help promote economic growth. For this strategy to succeed, however, will require nothing less than a whole-of-government approach and a recognition that business is the primary vector of innovation in the economy.

Universal Pharmacare and Federalism

Canada is the only OECD country with universal health insurance that does not include coverage of prescription pharmaceuticals. Some provinces have taken steps to provide drug insurance coverage for the poor, the elderly and people facing catastrophic costs (there are some 70 drug funding programs across the country). However, access to essential medicines depends on factors such as age, medical condition, income and province of residence. It is estimated that approximately 20 percent of Canadians have no drug insurance.

A number of reports have recommended that Canada’s public health services be expanded to cover pharmaceuticals. This possibility is now under serious consideration, with the establishment by the federal government of the Advisory Council on the Implementation of National Pharmacare, led by Eric Hoskins (a former Ontario cabinet minister). The council is mandated to report by spring 2019.

This study explores options for universal pharmacare in the context of Canadian federalism. The authors define universal pharmacare as a system of insurance for important medicines that is progressively financed (i.e., contributions reflect users’ income) and has no access barriers due to costly copayments. Such a system would ensure access to important medications for millions of Canadians and improve the return on investment for the money spent on pharmaceuticals. However, there is very strong opposition to universal pharmacare from private insurers and pharmaceutical companies, which often argue for “filling the gaps” rather than comprehensive reform.

The authors outline two policy options that, based on their analysis, are feasible given the constitutional division of powers. The first would be for the provinces to delegate the power to administer drug insurance plans to a new arm’s-length agency funded by the federal government. An example of such an organization is Canadian Blood Services, which on behalf of the federal, provincial and territorial governments is responsible for the provision and management of a $500-million drug portfolio.

The second option would be for the federal government to adopt legislation similar to the Canada Health Act and provide an annual pharmacare transfer to the provinces and territories. This would give them flexibility in the design of their respective insurance systems, with federal contributions contingent on compliance with two critical criteria: (1) universal coverage should be provided for a basket of essential drugs, without copayments or deductibles; and (2) decisions over what to include in the basket should be made by an arm’s-length body (or bodies) that would negotiate with drug companies for the best prices.

The authors point out that, under either option, private insurers would not be eliminated. However, their business model would need to change to focus on brands of drugs not included in the universal public plan.

Acknowledging the challenges of reaching the necessary intergovernmental agreement, the authors call on the federal government to make a firm commitment to leading Canada toward universal pharmacare and to begin negotiations with the provinces and territories.

Coordinating Federalism: Intergovernmental Agenda-Setting in Canada and the United States

  • National agenda-setting is a primary objective of Canada’s Council of the Federation and the National Governors Association in the United States.
  • American Governors have proven more effective at influencing the national agenda than Canadian premiers.
  • Hiring full-time staff specifically to engage the media and the federal government would help the Council of the Federation raise its national profile.

Creating an Independent Commission for Federal Leaders’ Debates

 Since the first one was held in the federal general election of 1968, leaders’ debates have become important moments in our country’s democratic life. In recent elections, technological advancements and changes in the conduct of politics have challenged the way in which the debates have been organized as well as their importance in the democratic process. These issues came to a head during the 2015 general election: more debates were held, but they were distributed across smaller platforms and reached fewer voters than in previous elections. Voters were confused about which debates they should watch and how to access them. The “debate about the debates” became part of the story of the 2015 election, and the experience highlighted the need to review how debates are managed during elections.

In response, Canada’s Minister of Democratic Institutions was mandated by the Prime Minister to create an independent commission to organize political party leaders’ debates in federal election campaigns. As part of the consultation exercise launched by the Minister, the Institute for Research on Public Policy (IRPP) facilitated five round tables ─ in Halifax, Montreal, Toronto, Winnipeg and Vancouver ─ to seek the views of experts and stakeholders on this reform. Although there were disagreements, many points of convergence emerged from the discussions. The following is a summary of recommendations, based on the IRPP’s assessment of what was heard throughout this consultation exercise:

1. The Government of Canada should proceed with the creation of an independent body to oversee leaders’ debates during federal election campaigns.

Based on the discussions held throughout the round table process, there is clear support for the idea of creating an independent body. The proposal received broad support at every round table, often enthusiastically so. Even those participants who supported the status quo over any proposal for reform seemed to agree that it was the reform option they preferred. In fact, no other reform option was raised in any meaningful way at any of the round tables 

2. The government should opt for a commission over an individual commissioner.

Most participants agreed that the independent body would be more effective if it were led by a small group rather than a single individual.

3. The independent commission should have, and be seen to have, broad support from political parties, and it should report to the public, not to the government.

The process of creating such a commission should include some opportunities for political parties to express their opinions and ultimately their support for this reform. Moreover, while most round tables did not go as far as to declare that the commission must have the status of an agent of Parliament, there was strong support for the importance of having similar independence, authority and accountability mechanisms.

4. The commission should be fully supported by public funds.

Consistent with the important role debates play in an election campaign, as well as the established practice of publicly funding elections themselves, the commission should be fully supported by public funds. Of course, measures must be put in place to ensure this is done prudently and in the interests of taxpayers, but the principle of supporting this public process with public funds is sound. 

5. The core mandate of the commission should be to organize a few key debates and should not preclude other organizations from producing similar activities or events that would fall outside that mandate.

The diversity in the format of debates in 2015 was widely viewed as a positive innovation that should be preserved in future. The mandate of the commission should focus on one or two debates in each official language and ensure its highest possible value to voters and widest possible distribution. It should not, however, bar other organizations from organizing other debates, be they with party leaders or other spokespersons.  The aim of this reform should be to “universalize” access to one set of comprehensive debates, and then allow others to pursue their own initiatives. 

6. The process led by the commission should seek input from media organizations and political parties, but also academics, stakeholders and citizens, in an open and transparent manner.

In establishing rules, timetables and formats for leaders’ debates, the commission should seek input in a transparent way. Eligibility criteria and other principles that will guide the commission’s work should be communicated to the public at the outset, and deliberations should be conducted in full view of the voting public.

7. In matters related to the participants, timing and format of debates, the commission should be the only decision-making authority and should be held to account for its performance after each election cycle.

Once advice from outside groups has been received, the commission should decide how debates will be conducted on its own. It should proactively disclose the rationale for the decisions it makes regarding debates prior to an election, and then be held to account for its results after an election.

8. Beyond persuasion, the commission should not compel the participation of party leaders.

While this was not a unanimous view, the majority of participants felt that participation in debates was a political decision best left to the party leaders and their campaign teams. The penalty for failing to do so should therefore also be political in nature. Let voters decide the price of not participating. 

9. The commission can consider making the distribution of the debates mandatory for some media outlets, while encouraging others to follow suit.

While not unanimous, and in contrast to the views on party leaders’ participation, there seemed to be greater support for the notion that some media outlets could be compelled to carry the debates to ensure wide access. Many believed that this could come with some financial compensation for those on whom it has been imposed. Other outlets that simply chose to carry the debates should be encouraged to do so and should have access to the feed at no cost, but in these cases, compensation would not be required.

10. The leaders’ debate feeds should be made available free of charge to media organizations that wish to carry them, but this must come with strict terms and conditions to protect their integrity.

To encourage the largest number of media platforms to carry the debate feed, the commission must move away from the copyright protection model and allow free access. However, strict terms and conditions must be attached to allow the commission to control the use of feeds and maintain the integrity of debates.

11. Accessibility issues related to geography, language and ability must be paramount.

These issues must be explicitly included in the commission’s mandate. Related performance indicators must be made public prior to an election and must be reviewed specifically when the commission’s performance is assessed.

12. The commission should be a permanent operation.

While the intensity of its activity is likely to vary, the commission should be allowed to maintain its operations throughout the election cycle. This will allow it to keep up with technological advancements and best practices and be ready should an election be required sooner than anticipated. This would also allow the commission to play a public education role in support of what is already being done by Elections Canada.

In addition to the recommendations outlined above, a few concluding observations can be made from the comments and advice received from participants in all five cities. First, the interests of voters must be at the centre of this reform, outweighing all other considerations. This principle should be reflected not just in the decisions made on debate format and content, but on the governance of the commission itself. Second, journalistic ideals should continue to shape the exercise, even if the mechanics of media participation in debates evolve. Voters will need a high quality debate focused on content and with high production value to attract their interest. Third, as a core component of election campaigns, debates are political exercises. Any new process must be open and transparent — and the commission’s decisions must be depoliticized — but it is neither possible nor desirable to completely remove politics from what is in essence a political event. Rather, politics should be framed and channelled appropriately, but not ignored.

Finally, the commission should be built to last. It should be adaptable to evolving voter preferences, party configurations, and social context. It is more important, therefore, to get it right than to get it soon. This does not mean that no reforms can be implemented before the next federal election, in October 2019. But it might mean that it is worthwhile to consider some changes that can put us on the path of reform prior to the election, with other changes coming after the vote to consolidate the changes already made.

Les services de garde subventionnés : l’exception du Québec dans le contexte fédéral

Compared with other Western countries, Canada has devoted far fewer resources to child daycare services. In contrast, since the late 1990s, Quebec has invested a significant amount in an accessible daycare program, initially limiting the fee paid by parents to $5 a day for each child. Twenty years later, Quebec is still a leader among the provinces in this field.

Until now, researchers have focused on understanding why the federal government has failed to implement an ambitious daycare program. Very few have looked at why the provinces, aside from Quebec, have not acted in this domain, even though some studies have compared Quebec with Ontario or British Columbia. This study is the first to attempt to explain “Quebec’s exceptionalism” in child care services.

Based on an exhaustive and critical survey of the literature, Gabriel Arsenault, Olivier Jacques and Antonia Maioni find that three factors explain Quebec’s distinct path: (1) the presence of a centre-left party that could act as the “protagonist” by introducing a major reform in child care; (2) a party system in which no right-wing party was able to form the government and act as the “antagonist” to abolish the progressive program created by a left-wing party; and (3) the fact that child care is considered a provincial responsibility by all political parties and civil society actors.

Quebec is the only province where all three conditions exist. Thus, the Parti Québécois was able to implement an ambitious child care reform, which the Quebec Liberal party has largely maintained. In Quebec, interest groups in the area of early childhood voice their demands to the provincial government. In the rest of Canada, civil society actors tend to turn to the federal government.

This study also advances our knowledge of public policy in a federal context. In this respect, the debate over the mixed results of Quebec’s child care policy has hindered the adoption of a similar policy by the other provinces. As well, the fiscal imbalance between the federal government and the provinces and the structure of federal tax credits probably do not encourage the provinces to invest in child care services. Finally, this study evaluates the role of cooperation between the state, unions and employers in the field of child care. Such cooperation does not seem to have played a major part in the implementation of Quebec’s child care policy.

British Columbia-Indigenous Nation Agreements: Lessons for Reconciliation?

  • There are few historical or modern treaties with Indigenous nations in British Columbia.
  • Since the early 2000s, the BC government has signed several hundred bilateral agreements governing relations with more than 200 Indigenous nations.
  • Although these agreements do not have the constitutional protection of treaties, they are steps toward reconciliation in an evolving relationship with Indigenous peoples.

Interpreting Canada’s Medical Assistance in Dying Legislation

Uncertainty about the meaning of specific terms in the Canadian medical assistance in dying (MAiD) legislation puts Canadians at risk in a number of ways. Eligibility for MAiD may be determined too broadly or too narrowly, and there may be arbitrary inequality of access when the various MAiD assessors and providers interpret the law differently, say Jocelyn Downie and Jennifer A. Chandler.

Until the courts step in with definitive interpretations, they propose interpretations of six key phrases in the current law that urgently need clarification. The authors do not seek ways to expand or restrict access to MAiD but rather to determine the most defensible interpretations of the legislation, using the tools of statutory interpretation supported by the relevant clinical and other forms of expertise.

In conclusion, they invite all responsible authorities to adopt, endorse and/or disseminate the proposed interpretations in the report, in an effort to provide needed guidance to patients and health care practitioners and move the public discussion toward potential consensus on the meaning of the terms in the legislation.

In particular, they call on:

  • The Minister of Justice and Attorney General of Canada to publicly state that the proposed interpretations are consistent with (or not inconsistent with) the government’s policy intentions when crafting the legislation.
  • The federal government to reflect the proposed interpretations in an update to the glossary that the Department of Justice posted on the Internet to accompany the legislation when it was introduced.
  • The federal government to reflect the proposed interpretations in the regulations establishing the federal monitoring system.
  • The directors of public prosecution and attorneys general in each province and territory to reflect the proposed interpretations in guidelines for the exercise of prosecutorial discretion in the context of MAiD.
  • The regulators of physicians, nurse practitioners and pharmacists to reflect the proposed interpretations in their MAiD practice policies or standards.
  • Regional health authorities and hospitals and their MAiD teams to reflect the proposed interpretations in their MAiD policies and standards.
  • Professional liability protection providers to reflect the proposed interpretations in their advice to physicians, nurse practitioners and pharmacists.
  • The Canadian Association of MAiD Assessors and Providers to reflect the proposed interpretations in their clinical practice guidelines and educational programs.
  • The Canadian Medical Association and the Canadian Nurses Association to reflect the proposed interpretations in their educational programs and guidance documents.
  • Civil society groups such as Dying With Dignity Canada to reflect the proposed interpretations in their public education materials and programs.

The Emerging Policy Relationship between Canada and the Métis Nation

  • The Supreme Court of Canada decided in 2016 that the federal government’s jurisdiction over First Nations and Inuit people extends to the Métis.
  • Initiatives such as the 2017 Canada-Métis Nation Accord suggest the federal government is committed to deepening its relationship with the Métis.
  • A true government-to-government relationship will require an ongoing commitment to respect the Métis as partners in policy-making.

A Federation within a Federation? Devolution and Indigenous Government in the Northwest Territories

The Northwest Territories (NWT) is on the leading edge of political, constitutional and administrative changes that are fundamentally redefining the relationship between Indigenous peoples and the Canadian state. In this study, Jerald Sabin shows how the territorial and Indigenous governments of the NWT have been developing institutions with executive, fiscal and regulatory functions to mediate and regularize intergovernmental relations, in what is becoming, in effect, Canada’s first federation within a federation.

Two forms of government restructuring have taken place concurrently in the NWT. First, the devolution of land and resource management from the federal government to the territory, completed in 2014, has expanded the executive, legislative and administrative scope of the public territorial government. Second, new governance and fiscal arrangements within the territory have empowered communities and brought decision-making power closer to the local population. For Sabin, the speed of federalization and the peaceful means through which power has been dispersed have been striking. The emergence of constitutionally entrenched Indigenous governments has nevertheless created a complex policy environment with shared and overlapping responsibilities.

Sabin examines three instances of institution building that affirm the political authority of public and Indigenous government while facilitating their policy interdependence: (1) the creation of the Intergovernmental Council, (2) the introduction of significant resource revenue sharing with Indigenous governments, and (3) attempts to harmonize regulatory oversight in the territory. His analysis relies on a review of government reports, court documents, budget material and secondary sources, interviews with key participants, and communications with federal, territorial and Indigenous government officials and political observers. The study also compares the political development of the NWT with those of Canada’s two other northern territories — Yukon and Nunavut.

The study provides several lessons for the understanding of Indigenous-settler and intergovernmental relations in Canada. The accomplishment of northern peoples in peacefully negotiating, designing and implementing this model of power sharing should be underscored. These developments are a further example of how the Canadian federation is incorporating diverse nations within its borders. Internationally, this model is unprecedented.

However, the NWT model may not be appropriate for all jurisdictions across Canada. The statutory basis for territorial government makes its structure more malleable, and the model is politically viable — even necessary — in the NWT due to its large Indigenous population. More broadly, the NWT’s federation within a federation is a significant step toward embedding Indigenous and treaty rights in the public governance framework as well as the reconciliation of Indigenous and settler societies.