Attorney General Alan Rock has edged away from a provision that would encourage courts to impose electronic house arrest on citizens who haven't been convicted of, or even charged with, crimes. But the remnants of his proposal still offend centuries-old notions of fair play.
The Commons justice committee deleted a section that would have allowed provincial attorneys-general to ask courts to impose electronic surveillance on individuals they deem likely to commit serious crimes involving personal injury. Such an order would have allowed police to use tamper-resistant, electronic ankle bracelets to monitor the whereabouts of such individuals.
The proposal was originally part of Bill C-55, a package of criminal code amendments aimed at high-risk offenders.
Since the notion that society should presume innocence until it proves guilt occupies such a central and venerable place in our concept of justice, the mandatory-bracelets-for-the-innocent provision faced almost certain death once challenged constitutionally.
In an interview with The Hamilton Spectator, Alan Borovoy, general secretary of the Canadian Civil Liberties Association called the proposal "encroachment by clairvoyance because it doesn't require a conviction or a charge that you have done something. Rather it's based on a belief that you're going to do something."
Rock could not bring himself to admit that the provision offended our deepest notions of justice. Instead, he pretended it was dropped because electronic bracelet technology was not yet "sufficiently advanced". And he left in place provisions which, though less flashy, offend just as deeply.
If passed without further amendment, the law will still allow courts to impose numerous restrictions on people who have not been convicted, or even charged. Though judges in such cases would not be required to consider electronic monitoring, they would be required to consider barring a defendant from possessing firearms, longbows, ammunition, or explosives, and they would be required to consider ordering a defendant to report regularly to police or corrections officials for up to one year.
Courts could also apply more general restrictions, such as a requirement "to keep the peace and be of good behavior", and "to comply with any other reasonable conditions" - presumably including restrictions on the defendant's movements.
Deleting the reference to electronic monitoring does not, as Rock points out, prohibit a judge from imposing such a sanction on a preventative basis, it merely "reduce(s) the prominence of the prospect considerably by not requiring a judge to consider it in each case".
If justice were a simple matter of locking up the maximum number of people for the longest possible time, the preventative sanctions contemplated by Bill C-55 would not be objectionable.
But justice, as most citizens know and as a minister of justice ought to know, is a much subtler, more delicate concept than that. Among other things, it consists of laws carefully crafted to restrict the power of the state to interfere with the liberty of citizens.
These restrictions exist because long and incontrovertible experience tells us that, in their absence, states are prone to abuse the liberty of citizens.
At their most basic, they include the requirement that the state must prove guilt before imposing punishments. Rock's bill, though less offensive than as first proposed, turns that presumption on its head. Punishment first. Charge and conviction later.
Parliament should have the gumption to reject it. Failing that, courts are almost certain to rule it unconstitutional.