Not asking much: A fair and effective criminal justice policy

Par David Daubney

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When Stephen Harper became leader of  the Conservative Party he and his advisers consulted American Republican operatives about ways a right of centre party can build  and solidify a base of support. The advice, in addition to emphasizing tax breaks and other pocketbook issues was to be, or appear to be, tough on crime.

Since 2006 the Conservative Government has pursued an unrelenting law and order campaign as its principal legislative product. An unprecedented number of Government amendments to the Criminal Code of Canada, the Corrections and Conditional Release Act and related legislation such as the International Transfer of Offenders Act have been passed. When Conservative Party of Canada Private Members Bills (PMBs)  are included (and in recent months the indirect use of PMBs by the Government  has become a growing pattern ), the tally is close to 70. This has occurred in an environment of dramatically declining crime rates (23% in 10 years) and increasing justice and corrections costs (also 23% in a decade).

How much of this flood of legislation will actually contribute to public safety? Almost all informed observers have answered that little will. Why? Because the Harper Government has deliberately ignored the evidence about what works to make societies healthy and safe.

When Stephen Harper became leader of  the Conservative Party he and his advisers consulted American Republican operatives about ways a right of centre party can build  and solidify a base of support in a country where a majority of the population is in the middle of the political spectrum or disengaged from the political process altogether. The advice, in addition to emphasizing tax breaks and other pocketbook issues was to be, or appear to be, tough on crime.

Ten years ago the United States was just ending a two-decade period of huge growth in prison populations from approximately 200,000 in the mid-1970s to over 2 million driven   by the mandatory minimum sentences of the War on Drugs and accelerated , after the fall of the Iron Curtain, by fear of crime displacing fear of Communism. Despite this, by 2003, a number of US States (which are responsible for most sentencing legislation) had begun to reduce or even repeal some mandatory sentences. This has since become a trend as more State governments accept that they cannot continue to spend more on corrections than education particularly when the outcomes of mass incarceration are so unsatisfactory.

On July 6, 2006 The Ottawa Citizen reported on a response to an Access to Information request that the “Conservative government, within days of taking office, was warned by senior federal bureaucrats that its central election pledge to impose new automatic prison terms won’t deter crime or protect the public…”. The story quoted from a ministerial briefing book that  “ Research into the effectiveness of mandatory minimum sentences has established that they do not have any obvious special deterrent or educative effect and are no more effective than less serious sanctions in preventing crime.” This Justice Canada advice added that mandatory sentences have “no discernible benefits” in terms of public safety.

The Government has consistently ignored this advice and this has led to a tripling of mandatory     sentences and significant increases in the length of those that existed prior to 2006.

It is worth noting that few Western democracies except for Canada and the US have mandatory sentences other than for murder.  Those that do such as England and Wales and South Africa have safety valves or escape clauses that give sentencing judges some discretion to depart from mandatory sentences in situations and circumstances where it would be unjust, grossly disproportionate or contrary to the interests of justice to impose them.

I would strongly recommend the adoption of such a provision and a more general policy of great restraint in the use of mandatory sentencing. This had been the practice of Liberal and Progressive Conservative governments since the 1930s.

The extent to which the current government departs from this approach is well described in an essay co-authored by one of Canada’s most prominent criminologists, Professor Anthony Doob of the University of Toronto, in the September, 2012 issue of The Walrus. Entitled The Harper Doctrine: Once a Criminal, Always a Criminal, the article points out that “Canadian governments, both Liberal and Conservative, have agreed that our criminal justice system should help offenders rejoin civil society – until now, for reasons that have nothing to do with reducing crime.”

Professor Doob and his co-author, Edward Greenspan QC, quote from a 1971 House of Commons debate on penitentiary reform between then Liberal Solicitor General Jean-Pierre Goyer and his Progressive Conservative critic Alberta MP Eldon Wooliams. Goyer points out that “We will undoubtedly have to keep protecting society against dangerous criminals, but we will also take into consideration the fact that most inmates do not belong to such a category…an inmate is always a citizen who, sooner or later, will return to a normal life in our society.”

Wooliams agreed entirely with the Minister’s remarks and hoped he “… would translate his words into action in order to relieve the terrible frustrations of the convicted and to change our prisons from factories of crime to factories of rehabilitation and prevention of crime.”

This bi-partisan consensus continued during the PC administrations of Clark, Mulroney and Campbell, although only the Mulroney government was in office long enough to demonstrate it – witness the comprehensive, thoughtful and unanimous Justice Committee reports on Sentencing, Conditional Release and Federal Corrections  and Crime Prevention in 1988 and 1992 respectively.

Another  remarkable demonstration of this policy consensus was the reprinting and re-releasing  by the Mulroney government in 1989 of the Trudeau Government’s seminal treatise, The Criminal Law in Canadian Society , first published in 1982 when Jean Chretien was Justice Minister. This important  document guided Justice policy makers for the last two decades of the 20th Century. No doubt any remaining copies in government libraries have been shredded!

Perhaps CLICS, as it is fondly recalled, is best remembered for its reminder that the criminal justice system alone cannot ensure a safe society. It is but one of several sectors that can contribute

Along with health, education social services, crime prevention initiatives and the voluntary sector all working together to address the underlying factors that cause conflict and crime. The daunting conclusion is that by the time a matter reaches the criminal justice system most of these other sectors have failed to have a positive impact.

The Liberal Party must understand that the current government’s approach has been an aberration in historical terms. Liberals should not be intimidated by the fearmongers on the other side of the aisle.

Harper chose crime as his centrepiece because it is so easy to scare members of the public about crime based on sensational media reports of the worst possible but extremely rare cases.   His government has done all it can to keep the public ill-informed on this issue and so many others. As Senator Larry Campbell put it during the Debate on Bill C-10, instead of addressing fear of crime, the Harper Government has created it.

Ultimately, good public policy is dependent on a well- informed public. We know that a well-informed public is anathema to the Harperites.

Countless studies in Canada, the UK and elsewhere have demonstrated that the more reliable information citizens have of a particular sentencing decision for instance, the more supportive they will be of a sentence that may have appeared lenient after seeing a brief media report .

Moreover those who hope for a return to a balanced, fair and effective crime policy that works to keep Canada safe, should take comfort in the fact that for the past 15 years 96% of the huge number of    Canadians who participated in the General Social Survey have answered “Yes” to this question: “Do you feel safe in your own neighbourhood?”

Perhaps the fear of crime campaign needs some TV ads!

David Daubney is the former Progressive Conservative MP for Ottawa West from 1984-88. He rejoined the Department of Justice as general counsel, sentencing reform team, in 1990 and retired in 2011. He is co-chair of the Smart Justice Network of Canada and on the Board of Advisors of The Canadian Centre for Progressive Policy.

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