Swan's knee-jerk intervention shows he's not doing his job

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Andrew Swan

Someone needs to remind Andrew Swan who he is, and fast.

Swan is the attorney general of Manitoba. He is an elected official, but in his cabinet role he is the chief administrator of justice in the province. His responsibilities are to ensure the justice system is fair, functional and free of fear or favour in all respects.

Swan, a lawyer before he dedicating himself to politics, should know that. He should know that as the province's top justice official, he is occasionally required to defend the justice system when it's under attack. And that fairness is not measured solely by the quality of our punishment, but also through the mercy and compassion we show to those who break the law.

He should know these things. But he clearly does not.

This week, Swan caved into the shrill rantings of those who would deny Vincent Li the chance to walk the well-groomed lawns of the Selkirk Mental Health Centre.

Li, guilty of the horrific murder of a Manitoba man in 2008, was declared by a court to be not criminally responsible (NCR) for his actions because he suffers from schizophrenia and dementia.

Swan knows this. And yet, he still managed this week to pander to the irrational concerns of an uninformed constituency that cannot see beyond the horrific details of the murder.

Swan has suspended a decision by the federal Criminal Code Review Board to allow Li to take escorted walks on the grounds of the mental health centre. For more than a year, he has been kept in a locked ward and not allowed outside. Swan demanded increased security before Manitoba honours a decision that Swan claimed has "shocked the conscience of all Manitobans and indeed all Canadians."

Not everyone is in fact shocked. The physicians responsible for Li's treatment believe that he poses no threat. The Criminal Code Review Board, acting on the advice of the best experts, decided it was time for him to leave the locked ward. Swan, with only the discomforting optics of Li standing outside the mental health centre with the sun on his face, felt otherwise.

But then Swan went further to criticize the law itself, and the review board, for having made the decision in the first place. He served notice he will lobby Ottawa to change the rules for how we treat NCR patients.

"We strongly urge that the Criminal Code of Canada should be amended to ensure that such a demonstrably unfit disposition cannot be made," Swan wrote in a letter to Ottawa.

Really? Manitoba's attorney general believes the law should be changed to ensure that those very few people declared NCR are locked up longer and literally never see the light of day? Is this Swan's way of saying he wishes to revoke the NCR provisions altogether?

The reality is that Swan will never say those things. But he will engage in a clumsy and inelegant bid to have his cake (pandering to the hang 'em high crowd) and eat it too (honouring a completely reasonable justifiable provision of the criminal code).

Note to Swan: It's not working.

Swan proved during his botched NDP leadership campaign he was not ready for high-level politics. In his very short tenure as the attorney general, he has continued to show that what happened last fall was no accident.

He has become a knee-jerk waffler, which has allowed the opposition to paint him into corner after corner. Swan was completely hamstrung, for example, by criticism over the provincial probation services.

It was recently reported that probation officers were using Slurpees and doughnuts to encourage young offenders to keep their probation appointments. Tory Justice critic Kelvin Goertzen, doing what he does best, howled and Swan caved by declaring an investigation of probation services.

Would Swan really rather reincarcerate young offenders for breaching parole than spend a few pennies here and there providing treats to keep the offenders current with their post-incarceration obligations? No, Swan would not say that. But he would sell all of the overworked, underpaid probation officers down the river to create an impression he's a tough cookie.

The often verbose and hyperbolic Goertzen is eating Swan for dinner. It's not even a fair fight anymore.

The issue here is not whether Swan is tough on crime. The real issue is whether he is tough enough to do the job he was given. That job is to safeguard the administration of justice, even if that means upholding an unpopular law that does not hold someone with a mental illness criminally responsible.

Declaring Li not criminally responsible was just. Allowing him time outside a locked ward is just.

Now, if we could only get an attorney general with the courage to admit that.

dan.lett@freepress.mb.ca

Republished from the Winnipeg Free Press print edition June 5, 2010 A4