Lisa Kerr is Assistant Professor at Queen's University, Faculty of Law. She recently completed a doctorate in law at New York University, where she was a Trudeau Scholar and conducted comparative research on sentencing and prison regulation.
Anthony Doob is Professor Emeritus in Criminology at the University of Toronto. His current research focuses on the development of criminal justice policy in Canada.
There is no question that Harper’s Conservatives have talked tough about criminal justice, departing from the more moderate tone that has characterized Canada’s history on this topic. Before Conservative rule, Canada had a long tradition of allowing criminal justice experts – like judges and prosecutors – to make decisions in ways that were largely insulated from politics. One result is that Canada has been able to sustain a stable, moderate rate of imprisonment. Even during decades when violent crime was much higher across North America – when the US was busy generating the policies that would deliver its current situation of ‘mass imprisonment’ – Canada relied on imprisonment comparatively sparingly. Since 1950, imprisonment rates have varied between about 81 and 116 adults per hundred thousand Canadian residents. In 2005 the rate was about 104. Currently it appears to be about 115.
This tone of moderation in crime policy has changed. With the Conservative politicization of the field of criminal justice we have seen an uptick in rates of imprisonment, an increase in the severity of the punishment experience, and a new reliance on crime as a salient topic with which to mobilize political support. Harper’s Conservatives have overseen decisions to close prison farms, fire prison chaplains, strip judges of sentencing discretion, and increase the use of solitary confinement. The overrepresentation of indigenous people in our jails and prisons – already a problem under past governments – has also become worse during Conservative rule.
There are too many bills and speeches to describe everything that has changed, but one can identify at least three categories of Conservative activity in this policy domain.
The first category of activity is found in the Conservative Party’s attempt to gain popular support by signaling that it is tough on crime through superficial or rhetorical moves that change little on the ground. For example, when Public Safety Minister Stephen Blaney suggested in December 2014 that the Conservative Party believes that all convicted criminals belong behind bars, no one actually thought they would attempt to imprison every person found guilty of driving with blood alcohol levels above the legal limit (92% are not imprisoned now). The Conservatives also passed laws telling sentencing judges to consider things like the age of a crime victim, despite the fact that judges already had broad authority to consider the circumstances of an offence when selecting a fit sentence. They also created a new law prohibiting the killing or maiming of police or military dogs or horses, notwithstanding the fact that the incident that they used to illustrate the need for the law (the fatal stabbing of a police dog) had resulted in a penitentiary sentence for a set of offences including cruelty to animals. Some of the talk is just talk.
A second category of Conservative activity has generated consequential policy measures that will be difficult to unwind. The Abolition of Accelerated Parole Act, for example, rescinded a program designed to get non-violent first-time penitentiary prisoners out of federal prisons and into more productive forms of community supervision. The vast majority of prisoners released under this program successfully completed parole with no new offences of any kind. The rate of violent offending while released on this form of parole ranged recently from 0% to 0.8% out of hundreds of people each year – a lower rate than ordinary parole (recently between 0.4% to 1.8%). The Supreme Court of Canada struck down a provision that made the act retroactive, but the wisdom of the legislation was otherwise unreviewable and remains in force.
Similarly, the Conservatives abolished the so-called ‘faint hope clause’ whereby a subset of those serving life sentences for murder can go before a jury of 12 ordinary citizens to ask for their parole ineligibility period to be reduced. If the jury unanimously recommends that the prisoner be allowed to apply for parole earlier than the time originally set, the prisoner still had to convince the parole board that release was warranted. Since the first hearing in 1987, an average of about 5 prisoners a year had been released under this provision.
A final example under this category is how the Conservatives have extended the stigma of punishment, even where individuals have successfully done their time. Since 1970, Canadians who had been convicted of crimes could, 3-5 years after the completion of their sentences, apply for pardons. If they had lived peaceful, crime-free lives, they were generally granted pardons. They would lose their pardon if there was evidence that they had offended again. 96% of all pardons granted are still in force. However, the Conservatives changed the name of the process (from “pardon” to “record suspension”), raised the application cost from $50 to $631, increased the waiting time to 5-10 years after the completion of their sentences, eliminated the possibility of obtaining a pardon for some offenders, and, remarkably, allowed the Parole Board of Canada to suspend indefinitely the processing of applications from people who legally were entitled to pardons and had applied before the laws changed.
A third category of Conservative activity represents real change, though it may be short-lived. Mandatory minimum sentences for certain drug offences, for example, are likely to be found unconstitutional. These sanctions will either be undone or significantly ameliorated by prosecutors and judges. In this category, our biggest concern might be that the Conservatives have a tendency to waste legislative time and drain litigation budgets in their criminal justice efforts.
There is also real doubt as to whether the public interest is served by the Conservative reforms. One new provision, for example, requires mandatory jail time of 6 months for a person who grows 6 marijuana plants, whereas punishment extends to 9 months if a person grows the plants in a rented apartment. In many cases, this will mean extra punishment for those who do not own the property they live in. Under the new law, judges are unable to consider whether the disruption in housing, employment and family ties that follows from jail time is a good idea – whether for the individual or the wider community that she will be returning to.
The Spin on Crime Rates
What ties these activities together is the widely-noted peculiarity of a desire to reform the criminal justice system – or at least talk about reforming it – at a time when crime is in a longstanding state of decline. Total crime in Canada peaked in the early 1990s and declined thereafter. Homicide rates peaked in 1977 at 3 per hundred thousand residents. In 2014, the rate was 1.46 homicide victims per hundred thousand residents. These patterns fit a larger story of peak and decline that has occurred in the United States and many other industrialized democracies. For well over a decade, Canada has been enjoying the same drop in crime as similarly situated nations. The causes of the drop in crime are not well understood. What is known for certain, however, is that the drop in crime in Canada has little to do with criminal justice punishment policies. Indeed, Canada’s imprisonment rate was remarkably consistent in the decades before crime fell.
On these facts it would be unreasonable to hypothesize that moderation in criminal justice policy – or the Conservative punitive criminal justice policies – have much to do with crime rates. Conservative party members have taken curious positions on the crime decline. At times, they attempt to take credit for the crime drop – in 2014 Harper said that “on our watch, the crime rate is finally moving in the right direction; the crime rate is finally moving down in this country.” At other times, they try to emphasize that crime persists – that “only reported crime is down.” The reduction in crime is, however, real, with overall rates declining since the 1990s, and it clearly flows from factors that predate Conservative rule.
Truth in Sentencing?
Another ahistorical aspect of the Conservative platform has pointed to the need for ‘truth in sentencing’ in Canada. This phrase first emerged in the US in the 1970s, at a time when that nation was experiencing radical doubt about both effectiveness and fairness in its criminal justice system. Crime rates and the associated social concern were approaching historic highs. In many states and the federal system, sentencing judges had a longstanding practice of imposing indeterminate sentences, with release decisions left almost entirely to parole boards. Sentencing courts operated with almost no legislative guidance and no meaningful appellate review. Reformers from the left and the right cried out for reforms like ‘truth in sentencing’ – they wanted a system where the sentence announced in court would relate more closely to what was served.
Canada has never had such an indeterminate, discretionary system. If lower courts depart without good reason from settled sentencing ranges, Canadian appellate courts can and do intervene. Our sentencing judges also announce fixed sentence lengths, which can be partially adjusted on the back-end of sentence administration only so as to recognize rehabilitation, good behaviour in prison, and to ensure the supervised reintegration of prisoners into society. When the US reform discourse trickled across the border in the 1980s, Canada declined proposals to abolish parole and establish sentencing guidelines. Canada did not have the problems that the US proposals were meant to fix.
In 2010, however, the Conservatives passed legislation under the rhetorical frame of ‘truth in sentencing.’ It was even called the Truth In Sentencing Act. But this measure had very different origins and effects than US measures under the same name. The Truth in Sentencing Act is not a prospective policy aimed at limiting the discretion of unaccountable parole boards or abolishing early release for good behavior in prison. Rather, the Truth in Sentencing Act prevents sentencing judges from using section 719(3) of the Criminal Code, as they had long done, to ensure that time spent in pre-sentence custody counts equally as time spent in custody after sentencing.
The background to this issue is that detention before trial can be ordered for a range of reasons, including when defendants simply lack the resources to secure bail. Courts generally gave enhanced credit for time spent in this form of detention for two reasons. First, statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing. Pre-trial time is “dead time.” Since prisoners are almost always released at or before they serve 2/3 of their sentences, the quantitative rationale recognized that pre-sentence detention should be credited at a rate higher than 1:1 and preferably at a rate that is equivalent to the credit given to those serving time after they are sentenced (1.5:1 or more). Second, the qualitative rationale for enhanced credit recognized that conditions in detention centres tended to be harsher than corrections facilities due to issues such as overcrowding, lack of educational programs and inmate turnover. As a result of these twin rationales, a practice developed of granting credit for pre-sentence detention at a rate of 2:1, permitted by section 719(3) of the Code. Without this judicial practice of giving extra credit for pre-trial detention, impoverished defendants would be imprisoned for longer periods of time, in harsher conditions, than those who have committed the same crimes but who have more resources with which to secure bail.
The Truth in Sentencing Act eliminated the judicial ability to order 2:1 credit. When it arrived, sentencing scholars and lower courts immediately began to criticize what appeared to be a stripping of judicial ability to even-out the effects of a denial of bail. The Supreme Court responded in R v. Summers by interpreting a statutory “exception” in the new law as liberally as possible. But some damage has been done in terms of arbitrary disparities in our system.
This final example shows how the discourse of ‘truth in sentencing’ was co-opted by the Conservatives so as to neglect or deny the relevance of the quality and real effects of our institutions of punishment. Rather than enhancing the ‘truth’ of our criminal justice system, which is a profoundly difficult challenge for any government, the Conservative agenda has been aimed at constraining judicial authority and providing an explanation for reform that is dramatically distant from the truth about the serving of sentences.
The Spin on Crime Victims
The Supreme Court will hear another Truth in Sentencing case soon, where it is expected to adjudicate the constitutional issues engaged by the law. Given the range of likely outcomes, media coverage on the case will likely comment on the ongoing tension between the courts and Parliament. That raises a final key point, which is about how the Conservatives contribute significantly to a sense of polarization in Canadian law and politics. In the criminal law field, the discourse of ‘victims rights’ has emerged as a zero sum game, where every punitive measure against offenders is offered as a prize to crime victims.
This is clearly illustrated in a new legislated requirement that judges impose on all those found guilty the requirement that they pay a ‘victim surcharge’ of 15% of any fine that is imposed or a flat amount of $100 or $200 for each offence. Previously, judges could waive the (smaller) victim surcharge if it was clear that the offender was unable to pay or payment would clearly harm others (such as family members whom the offender was supporting). Conservative Justice Minister Peter MacKay had a solution for those without cash or a line of credit to pay under the new victim surcharge. In his own words, “Sometimes they might have to – God forbid – sell a bit of property to pay and make compensation to their victim.” But the victim surcharge does not go directly to a victim and victim surcharges apply even when there is no identifiable victim (such as in impaired driving cases or in marijuana cultivation cases). In addition, one wonders whether Harper’s Justice Minister – a former crown attorney – had ever considered the possibility that many of those before the criminal courts have no money, jobs, or property. This is yet another area where many sentencing judges are doing what they can to limit the reach of the reforms, and where further constitutional litigation is inevitable.
The Conservative approach contains a good deal of bluster, but more importantly, the Conservative approach represents an attempt to dramatically shift Canadian values. In the past, Canadian governments and policies reflected the view that those who committed offences needed to be held accountable (or punished) for their deeds, and then reintegrated into Canadian society. In the Harper Decade, our collective voice of reason and moderation in criminal justice, which has served us reasonably well in the past, has faded from the Parliament of Canada.