There are those who feel that the NCR decision was the right, though imperfect one.

And there are those who are angered by the verdict.  They feel that justice was not done; that the jury was duped; and worst of all, that Kachkar’s life is going to be spared while that of his victim was not.  To them, a finding of “not criminally responsible” is equal to a full acquittal, a get-out-of-jail free card, a verdict of no repercussions for Kachkar and his actions.

But an NCR finding is not tantamount to escaping justice.  And it is not a ticket to freedom.  It is the best, albeit imperfect, response that we have to people whose severe mental illness rendered them incapable of formulating the kind of intent that we believe is necessary before someone can be convicted of a criminal offence.

What does an NCR finding really mean? 

In legal terms, an NCR finding means that the person who committed an act suffered from a major mental illness at the time of commission of the act, and, as a result of the illness, she or he either did not have the mental capacity to appreciate the nature and quality of the act or did not know that the act was wrong.  

In layperson terms, such persons are often delusional or haunted in a manner that makes them out of touch with the reality of what they were doing or why they were doing it. 

And, despite the impression that a number of highly-publicised NCR cases may leave, NCR findings are rather rare. 

While many people who commit crimes often suffer from varying degrees of mental illness, most of those persons would not qualify for an NCR finding.  (Neither would they want to be found NCR, given the severe consequences of such a verdict.)

Before an NCR finding is made, one or more psychiatrists meet with and assess the accused person, and examine all the information available about him from before and after the offence.  The psychiatrists’ conclusions, along with any other psychiatric findings, are presented to the court.  The court then decides whether or not the person was NCR: whether or not the person suffered from a mental disorder, and that disorder made him or her unable to appreciate the nature and quality of his actions or render him incapable of knowing that the act was wrong. 

The consequence for the NCR person, while not as draconian as a jail term, is still severe, still restrictive, and still results in deprivation of her liberty. 

In theory, a person who has been found NCR is not supposed to spend any time in jail.  In reality, people who have been found NCR often do spend days, weeks, or sometimes even months in jail while awaiting a bed in one of our over-burdened mental health institutions.

After a first assessment, NCR persons often spend years in a psychiatric facility in order to get treatment.  They are locked up in these so-called hospitals, until such time as a Review Board deems them safe enough for some form of a leave. 

The Review Board is comprised of lawyers, judges, psychiatrists or psychologists, as well as a member of the general public.  When an NCR person appears before them for a review (which is currently done on an annual basis), the Review Board examines an array of information, focusing on the treatment the person has received, their progress, their current mental health and their prognosis.  The Board considers public safety when deciding whether or not to grant the person some kind of release, be it a permanent one or in the form of escorted day passes.

Review Boards do not make their decisions casually.  They know the stakes.  They also know that the person before them committed the acts that they did because they were sick.  Once that illness is under control, the person no longer poses a risk to society.

Keep those mentally ill people who have recovered from their disease institutionalized longer, as Bill C-54 would, and you endanger their recovery, overburden our already taxed mental health institutions, and keep others who need those beds in jails rather than in hospitals.

But as Bill C-54 and the reactions to the Kachkar verdict prove, many of us continue to look at the mentally ill with suspicion.  We wonder if their illness really played a role in their behaviour.  Even if we believe that it did, we are doubtful that such persons can ever really be safe.  And so, we believe that the NCR finding lets guilty people get away with a horrible crime.  These are understandable doubts and fears, but the available facts and data should alleviate these concerns.

In reality, a person who has been found NCR is serving an indeterminate sentence: he does not know when the sentence will come to an end.  He is not free to roam in public at any time; he is institutionalized and locked up.  And while he may not carry with him the stigma of a criminal conviction, he will always wear the stigma of having committed a heinous act, and of having suffered from a mental illness so severe that he lost touch with reality and committed a horrendous act.  His future will forever be shaped and negatively impacted by this horrible disease and event.

The tragedy of a lost life will not be avenged through the punishment of a person who did not fully and consciously intend to cause that loss.  Convicting and forever locking up Kachkar and others like him will not bring healing or justice to the victims.  It will only make all of us, who do have the full use of our rational faculties, responsible for convicting a person who was too ill to recognize the nature, severity, and consequence of his actions.

Criticism by the public and experts to these moralistically-named bills has been loud, clear, and supported by evidence.  With a majority in Parliament, however, the Conservatives see little value in listening to the sage advice and admonishments of Canadians.

A complete list of all the bills and changes would go well into the hundreds.  Instead, here is a quick reference of some of the most significant and damaging laws enacted by the Harper government:

1.        The  “Tackling Violent Crimes Act” sounds like a story title from a Marvel comic strip, but it’s the Haper government’s one-size fits all answer to crime: “Jail everybody.  Jail them longer.”

The more prisons “solution,” is combined with the government’s utter failure to do anything constructive to address the causes of crime, or to address the fact that overcrowding in prisons and that incarceration result in much violence and increased recidivism.[i]

A portion of this legislation quickly became the subject of a Charter application in R. v. Smickle.   In that case, Leroy Smickle, a young man with no criminal record, was alone one evening at his cousin’s home (he had not joined his cousin to go out as he had work the next day), in his boxers and undershirt, while holding the gun he found at the residence.  He was foolishly posing with the gun for a Facebook picture in front of a computer that was on his lap, when the cops burst in, with the intention of arresting the cousin.   For his foray into showing off a gun to no live persons, he faced a minimum jail sentence of 3 years, if convicted.

The trial court struck down the portion of the law that left an accused person open to this kind of harsh sentence for a first offence for an act that posed a danger to no one (but the accused).

The Crown has appealed the case.  The appeal is being heard as I write this article.  So the fate of the accused and the law are yet undetermined and uncertain.

What is certain to all who are familiar with the evidence, however, is this: jail sentences and higher jail sentences not only do not reduce crime and recidivism, but in some cases they actually increase the likelihood of recidivism.

2.        The deceptively-named “Truth in Sentencing Act”   came into force on February 22, 2010.

Prior to the enactment of this law, sentencing judges in some jurisdictions counted an offender’s pre-trial custody time as more than 1:1.  There were good reasons for this.

Conditions in pretrial detention centres are notoriously worse than those where inmates serve their sentences: overcrowding, sleeping on floors within inches of dysfunctional toilet bowls, an absence of educational or counselling programs, lengthy lock-downs which keep inmates in cells for 20-24 hours a day, unsanitary conditions that expose prisoners to disease, the legal and moral problems with incarcerating people when they have not even been found guilty, and the psychological ramification of awaiting a trial while in custody.  Judges, who observed the recurrence of these harsh conditions concluded that it was necessary to count pre-trial detention as more than 1:1.

But the Conservatives contended that when courts granted someone 2 for 1 credit for pre-trial custody, they were misleading the public as to the actual sentence.  They felt that they had to step in to make judges and the criminal justice system more “honest.” So the law essentially prohibits judges from counting pre-trial custody as more than 1:1 when sentencing an offender.

In passing this legislation, however, the Conservatives not only removed judicial discretion in sentencing –an act which they have repeated many times since 2010—but they also hid from the public the truth about jails, jail conditions, and the factors that judges consider when they determine the appropriate sentence for someone.

The result is greater overcrowding in our jails, unjust discrepancies in sentencing, and even less accountability for the shameful conditions in some of our jails.

The law results in greater unfairness since, because of our parole laws, persons who have spent time in pre-trial custody (often because they don’t have the resources or the community support to get bail), will end up serving a longer jail term for the same offence, when compared to those who received the exact same sentence, but had been out on bail before their trial.  Most Canadians would deem this discrepancy unfair.  But this is, in fact, the result of the Truth in Sentencing Act.

Then things got worse.

Soon after they gained their majority in the legislature, the Harper government rolled all their various crime bills into one giant Omnibus bill, called the “Safe Streets and Communities Act,” or Bill C-10.  The many offensive portions of this bill came into force at different times during the last year.

The next  5 items are the poisonous branches of the Omnibus tree.

3. Increased sentences and mandatory minimum sentences for a range of drug offences:

The most criticized portion of this bill is that which subjects a person who grows 5 or more cannabis plants to a maximum jail sentence of 6 months or 5 years, depending on a number of legal factors.

One more pot and you could go to jail for at least a year (from http://www.cannabizz.com)

The evidence that the war on drugs is destructive and a failure is abundant.  Many people who were once advocates of the war on drugs warn that we must change how we deal with the presence of drugs in our society, and have spoken out against these futile and destructive measures.  (See the Sundance Film Festival Grand Jury Winner documentary film, The House I Live In by Eugene Jarecki. http://www.youtube.com/watch?v=a0atL1HSwi8 )

4.  The removal of conditional sentences (generally known as house arrest), another Bill C-10 gem:

Until recently, conditional sentences had the support of both Liberals and Conservatives.  They were seen as a cheaper, more effective method of rehabilitation and reintegration of offenders, as a means of ensuring that otherwise safe people could remain employed, remain with their families, and obtain the support that they needed, while being held accountable for their offences.

Conditional sentences recognize a few research-based realities: jails are generally ineffective tools for reducing recidivism; in some cases, jails increase the chances of recidivism; they are costly and unaffordable in society; they are oppressive; and there are better means of advancing societal goals of crime reduction than incarceration.

Judges, who were most familiar with the offender and the circumstances of the offence, could determine whether or not a conditional sentence was suitable for a particular individual.

But Bill C-10 eliminated this sensible option for many offences, including ones such as car theft or the theft of expensive items by first-time offenders.

5.  No Christian forgiveness from a party with strong ties to religion:

Before March of 2012, a person who had been convicted of a crime, but had spent a designated number of years afterward as a law-abiding citizen, could apply for a “pardon.”  If granted, his record would be cleared, his job prospects improved, his contribution to society could be increased.

Now, however, an eligible person can apply, not for a pardon, but for a “record suspension.”  This is more than a mere matter of semantics.  The label tells it all: if you have once been convicted, no matter how long ago the offence was committed, not matter how you have behaved since then, you will never be able to start over clean.

6.        How else can we oppress your stay while you are incarcerated?  Penalize a wider range of conduct while you are in custody.

Bill C-10 has also expanded the range of conduct that could get an inmate into trouble.  One new offence: being “disrespectful toward a person in a manner that is likely to provoke them to be violent.”  You know, like swearing at someone.   Disciplinary offences can lead to a range of consequences, including segregation.

7.   Punish our children more as well:

The crime and punishment ideology extends into the Harper government’s dealings with those who especially need our protection and guidance, young people.  The law places a greater focus on punishment and incarceration in the sentencing of young offenders.

Prior to the enactment of Bill C-10, the focus of sentencing judges in youth court matters was rehabilitation and reintegration of young offenders.  Judges must now, however, focus on denunciation and deterrence.  The principles of denunciation and deterrence generally call for incarceration.  This is a significant departure from Canadian values and government focus over the past few decades, and runs counter to all our knowledge and experience when it comes to how to best deal with young persons who come into conflict with the law.

7.  Make the underlying objectives of the Youth Criminal Justice Act more punitive:

The primary principles underlying our old Y.C.J.A. were to prevent crime by addressing the circumstances underlying a young person’s offences, to rehabilitate and reintegrate them, and to subject the young persons to “meaningful consequences,” all with a view to promote the long-term protection of the public.

The new Act, however, shifts the principles behind the Act, making “protection of the public” and “accountability” the primary focus of the Act.  “Protection of the public” and accountability are generally seen as cues for treatment of young persons, and requiring a greater focus on pre-trial detention.

With Bill C-10 passed and its various portions now being law, the Harper government moved on to other crime legislatin.

8.  Bill C-54, the Bill that sticks it to the mentally ill:

A person who suffered from a major mental disorder at the time of the commission of their crime, in some cases, may be found to be “not criminally responsible.”  Such persons are indefinitely institutionalized, until such time as a panel of experts (a Review Board) determines that these persons no longer pose a significant risk to society and that they have control over their illness.

The Harper government, however, is pushing for longer institutionalization and decreased focus on rehabilitation and reintegration.  Review Boards considering whether or not an NCR person should be released are now to make public safety the “paramount concern.”  Furthermore, they are no longer to impose the least onerous and restrictive conditions during a disposition hearing, but are to impose what is “necessary” and “appropriate.”  The words alone are not harmful, but the message is clear: review boards should shift toward continued institutionalization and should shy away from a measured release of individuals.

The result will not only be greater overcrowding of our mental health institutions, which already lack sufficient resources and function at full capacity, but also greater imprisonment of persons with mental health disorders in our regular prisons, since there will not be sufficient room for them at our mental health institutions.

A bigger prison population. Longer terms of incarceration.  Little to no investment in the kinds of social services and education that can help to reduce crime.  No support for alternatives to the criminal justice system, such as restorative justice.  Others have traveled this road.  And they warn us about the disaster toward which we are quickly heading.

But no matter, the tough talk is still getting votes.  So why let evidence and experience get in the way of ideology?

 If some members of the public reacted to the sentences with incredulity and reproach, it is understandable.

 Incredulity because, after all, perjury and obstruction of justice convictions almost always result in a custodial sentence for most people.  Why not so when police officers, whose role is to uphold the law, are the ones who intentionally mislead or lie to the court and undermine the administration of justice?

 Reproach because the judge appeared to have treated the police officers more favourably than others who are convicted of the same offences.  The judge’s sentence may send a message that police officers, at least when it comes to sentencing, will be given preferential treatment and will receive lighter sentences.

 In fact, most cases of perjury or obstruction of justice which involve lay person accused do lead to long custodial sentences. 

 In R. v. Jackson, a B.C. case, the accused initially received 7 months jail for his perjury charge.  The Court of Appeal increased that sentence to 30 months, and stated that perjury is to be treated seriously because of “its corrosive effect on the proper administration of justice.”

 In an Alberta case involving a relatively less significant case of perjury, the accused, Spath, plead guilty and received a one year jail sentence.

In another Alberta case, R. v. Corbett, a young accused forged a letter of employment for his sentencing and was charged with perjury.  His sentence on the perjury was 12 months jail.  

In a 2000 Ontario Court of Appeal case, R. v. D.(C.)., the accused received a one year prison term for perjury.  The court reinforced that perjury must carry a term of jail, because perjury “strikes at the heart of the administration of justice.”  

 In another Ontario case (R. v. Robinson), this one from 2009, a 46-year-old mother and first-time offender received 8 months for her lie to the court.   

 In a Newfoundland case where an accused, Kendall, lied under oath, the 42-year-old offender, who had no criminal record and whose pre-sentence report said that he was a suitable candidate for a conditional sentence, nonetheless received a 3-month jail term because the judge said that it would be contrary to the fundamental principles of sentencing to give someone a sentence other than jail for perjury.

 Over and over, the courts have emphasized the importance of sending a message to the public that  lying to the court is a serious offence, and that incarceration is warranted in cases of perjury in order to deter the offender and others from lying to the courts, and to denounce the act.

So why did that principle not apply to Steven Correia, Ned Maodus, John Schertzer, Raymond Pollard, and Joseph Miched? 

These (mostly former) officers were convicted of perjury or obstruction of justice, but received a mere 45 day sentence, to be served in the community, which means that they will serve their time mostly at home, with certain restrictions, and a few hours a week allotted for errands.

There are, in fact, cases where a conditional sentence has been granted for perjury.  But such cases are extremely rare.  In the 2006 Ontario case of R. v. Graham, the accused lied at her son’s bail hearing about her address of residence to help him get bail.  When the truth was quickly discovered, she was charged with perjury.  No one was harmed.  This mother of 6 had no criminal record, did not hold a position of trust (as police officers do), was in charge of an 8-year-old who had Downs Syndrome, and herself suffered from some physical ailments.  She did receive a conditional sentence, but in order to ensure that the principle of deterrence was protected, the court gave her a 15 month conditional sentence, plus 100 hours of community service. 

No short 45 day sentence for this woman.

In fact, defence council in the drug squad officers’ case provided the court with several cases where, not surprisingly, police officers had been granted non-custodial sentences for perjury or obstruction of justice.

The Crown is now asking the Court of Appeal to reconsider those 45 day conditional sentences, and to hand down tougher sentences to the officers.  The question for the Court of Appeal will be whether or not the trial judge handed down inappropriate sentences.

If the court were to follow the principle of parity and stay in line with previous cases of perjury and obstruction, it would have to change the sentences to custodial ones.  If it does not do so, the Court will likely try to carve out a niche for very exceptional circumstances where a conditional sentence may be granted, or will simply defer to the trial judge.  Either way, if the Court of Appeal does not change the sentence to a custodial one, the message that officers can get away with lighter legal ramifications will be amplified.

In reality, the judge’s humane and considered approach to sentencing these officers is laudable.  She very carefully considered the police officers’ personal histories, the traumatic impact of the charges on their lives and their families’ lives, and their emotional and psychological states.

 The problem is that we don’t seem to take the same humane, empathetic approach to other offenders who are not officers.

 In a more equitable world, every accused, through his or her lawyer, would have the resources, the skill, and the ability to paint a sympathetic picture of the accused’s suffering in the criminal justice system and the negative and emotional impact of the charges on his life.  Every judge would be able to relate to the accused person, and, while condemning the accused’s actions, would take note of the traumatic effects of the being accused of a crime and the potentially dangerous and horrible effects of being jailed. 

 The result would be less jails and possibly a more effective and humane criminal justice system.

 Alas, we are not ready for that.

“(I)ndividuals with mental health issues do not belong in prisons but rather in professional health facilities.”  Those were the promising words of the Minister of Public Safety, Vic Toews, in the House of Commons on Thursday, November 8, 2012.  He made this sweeping and dramatic claim in the wake of the release of the Ashley Smith videos, which portrayed her horrendous and inhumane treatment while she was in custody.

Toews’s comments might give an observer hope – hope that soon we will stop putting people with mental health problems in jails.

But in reality, the actions of the federal government lead to a different, bleaker conclusion, because every new criminal law and bill that has been introduced by the current government increases both the number and the length of the stay of mentally ill people in our prisons.

The most recent venture was announced on November 22, 2012.  In the new year, the Conservatives intend to introduce a bill that will ensure that persons who suffered from a major mental disorder at the time of the commission of a crime stay in custody longer.

In our courts, a person who is found to have been suffering from a major mental disorder at the time of the commission of the crime may be declared to be to be “not criminally responsible,” or NCR, by the courts if this person was unable to “appreciate the nature and quality of his actions” at the time of the offence.

People who are found NCR receive an indefinite sentence.  Once a bed in a mental health institution becomes available, then that person is transferred from a jail to that institution to serve their sentence while receiving treatment.  A panel of experts then annually reviews the inmate’s progress to determine if her mental illness is under control, and if it is safe to release her.

The Conservative government proposes to both decrease the frequency of these reviews and to change the standards so that it is harder to release a person, even if they are deemed safe.  As a result, people who have been found NCR but do not pose a threat will spend more time in the already scarce spaces of our mental health institutions.   That will mean more people with mental health illnesses will spend a longer period of time in jails, awaiting access to an overburdened mental health facility.

This proposal is directly aimed at people with mental health problems.  Despite that, it will not be the worst offender for putting the mentally ill in jail.  A string of other laws previously enacted by the current government have already exacerbated the situation.

Take, for example, the supposed “Truth in Sentencing Act” of 2009, which restricted a judge’s ability to give more than 1:1 credit for pre-trial custody when counting how much time a person should spend in jail upon conviction.  Before this legislation, lack of mental health services and unacceptably restrictive conditions in pre-trial detention (such as lengthy solitary confinement, prolonged and ongoing lock-downs, unavailability of doctors, therapists, or medication, and toilets overflowing in overcrowded cells) could be considered by a judge to reduce the amount of time a person ultimately serves in prisons.  The law, however, radically removed this discretion from judges, effectively forcing longer sentences on all people, including the mentally ill who, in the well-informed opinion of the judge, would be better rehabilitated in the community.

Worst yet are the mandatory minimum sentences, which came into force earlier in November of this year.  Mandatory minimums force judges to impose a minimum jail term, even where they might believe that a jail term or a lengthy jail term would be detrimental to a person’s mental health, his rehabilitation or reintegration.

And yet another law, which came into force on November 20, 2012, eliminates conditional sentences (also known as house arrest) for a wide range of offences, including non-violent ones such as theft over $5000.00, motor vehicle theft, and breaking and entering.

Conditional sentences have traditionally been used not only to reduce the high cost of imprisonment, but also as a valuable tool for enabling rehabilitation and reintegration of offenders, and as a means of keeping families whole, ensuring that people can continue their employment and to receive the kind of support that will improve their mental health.  The elimination of conditional sentences means that more people with mental health problems will stay in jail longer.

At anytime, 25-40% of the incarcerated population suffers from a mental disorder.  These health problems cannot and will not be remedied in jail.  On the contrary, the mental health of these people will often be more acute than before they entered state custody.  But our government ignores the victimization of the mentally ill and the cost to society, and persistently makes laws that incarcerate more people with mental health problems for lengthier periods of time.

Ultimately, our government says one thing when the spotlight is on the suffering of people with mental illness, and does quite the opposite when it comes to legislative action.

In other words, people with mental health issues may not belong in jail, but that’s where they’re going.

There is little to no logical connection between the government’s words and their actions.

They do not seem to appreciate the nature and consequences of their actions.

It seems that our legislators could use a good dose of medication and therapy.

But I won’t recommend jail.

And at the end of that week, suddenly and predictably, eight girls in London, Ontario, have been arrested for bullying another, and have been charged with criminal harassment. 

We deservedly feel guilt and shame over Amanda’s fate and our inaction as bystanders to other cases of bullying.  But the desire to do something, and perhaps to relieve our sense of guilt, should not lead us to precipitously arrest every bully, without first exploring other avenues for resolving these conflicts.  

Of the many options available to deal with bullying and bullies, the criminal law is the harshest, most punitive response we can use against anyone, particularly young people, who are still developing and often fighting their own emotional battles. 

In our efforts to prevent another Amanda Todd tragedy, we must take care not to be too hasty in the use of our bluntest and most retaliatory weapon, the criminal law.  

Our zeal must not render us bullies, as well.

Currently, we know very little about the London events that have led to the charges against the young women, or the emotional torment of their victim.  Reports indicate that a female student was the victim of emotional, physical, and cyber-bullying—all pointing toward another possibly tormented young life. 

It may well be that the arrest and criminal charges against those eight girls in London is justified. 

It may well be that all other options for dealing with this problem had been explored and tried, to no avail. 

But it is equally likely that under pressure to respond forcefully to bullying, the police cast the net too wide and arrested too many people. 

Did educators and parents try other, more effective, more empowering means of resolving the problem?

In general, the heavy hand of criminal law is a poor deterrent to most crimes.  Its impact can be devastating to the accused and unhelpful to the victim.  Worse still, criminally charging the perpetrators may end neither the bullying nor the suffering of the victim.  Indeed, the teasing, the emotional harm, the disenfranchisement and the dislike of the victim may increase, especially if the kids arrested are popular, or if their friends and other community members believe that the accusations or arrests were unjustified or a disproportionate response. 

There are alternative, more effective means of preventing and dealing with bullying.  These means require the collaboration and involvement of parents, teachers, counselors and community members.  They require changes in our habits and an examination of how we, as adults, speak about colleagues and peers.  They require changes in our parenting styles:  What shows we permit our children to watch; whether we talk to them about integrity and courage; whether we emphasize “coolness” over kindness. 

Do we, as a community, use supportive processes that encourage accountability by those who have inflicted the hurt?  Do we implement and use processes that facilitate communication by the victim, who may feel empowered by the chance to confront her tormentors?  Do we search for the possible, underlying problems in the life of the bully that have led him or her to act meanly? Do we look for solutions that can help both the victims and the bullies and will be transformative for everyone?

These measures may appear more time-consuming, but in the end, they are likely to be far more effective than the threat and the risks of criminal charges.

Skip these efforts and immediately charge, criminalize and potentially imprison kids who have engaged in bullying, and we send our children the wrong message:  “Your harsh and unforgiving behaviour will be met with even harsher and sometimes more draconian consequences.” 

It’s like reacting to a 4-year-old’s hitting of a friend by spanking the 4-year-old.   “You are going to hurt someone else?  Well, we are going to hurt you even more,” we threaten.

Skip the other efforts and we are abdicating our responsibility as parents and as a community, and leaving everything to the heavy hand of the criminal law, which should only and always be used as a last resort.

The statement is at once absurd and rational.

Absurd because it dismisses human suffering, be it that of victims or that of prisoners, to one side of an equation in the market place.

More bodies equal more income.

Greater imprisonment becomes a pre-condition for profit.

For the same reason, the statement is rational.  Why else get into the business of running prisons, if not to make large profits?

But imprisonment rates should not be a function of profit-making for private or public bodies.

Because rehabilitation has proven to be largely ineffective in our overcrowded, oppressive, and resource-scarce prisons, punishment is the only remaining excuse behind imprisonment.

Since the aim of imprisonment is punishment by the state, the burden should rest with the state.

Privatize jails and we abdicate our (albeit abysmal) responsibility to how we run jails.  We can blame a third-party for filthy cells covered in urine and feces, for the spread of diseases (which will eventually reach the rest of the population), for the lock-downs that force people into crammed cells for more than 20 hours a day, and for the physical and sexual abuse that take place.

But we (the state) are the ones who deal with our collective social problems with “deviant” behaviour by banishing people into isolation and destructive environments.  So we should bear the responsibility for those persons while they are in our institutions (and when they get out.)

Even in the absence of moral objections to prisons for profit, there is reason to flee from prison privatization. Currently, all signs point in one direction: private prisons are worse than public ones.

Here are some of the proven dangers:

1)  Corruption and kickbacks:

The fact that privately-run jails increase their profits through greater imprisonment opens the door for undue influence and corruption, whereby state officials, including judges, could send people to jail for personal gain.

Indeed, this is precisely what happened with two Pennsylvania judges, Michael T. Conahan and Mark A. Ciavarella Jr., who sent thousands of young persons to two privately-run jails and secured millions of dollars in kickbacks.  Many of those young people were first time “offenders,” such as a 17-year-old exemplary student who set up a spoof MySpace page that mocked the assistant principal of her school.  She got three months in jail.

Another young person, a 17-year-old star athlete, was found with drug paraphernalia.  Ciavarella sentenced him to several months of jail and a “wilderness camp.”  He missed his entire senior year and, according to his mother, never got over the ordeal.  He committed suicide at the age of 23.[i]

Ciavarella also locked up a young person who had stolen a jar of nut-meg, and one 10-year-old.

2)  Health and safety failures:

It’s not that provincially and federally-run prisons operate at desirable health and safety standards; it’s that privately-run ones fair so much worse.  A  CCA-owned prison in Ohio at once violated 47 health and safety standards.  Among those violations: no local fire plan to deal with inmates from locked areas in case of emergencies.[ii]

3)  Greater abuse:

Physical, sexual and emotional abuse, whether at the hands of jail guards or other prisoners, happen in state-run prisoners, as well.  But the abuses are likely to be worse in private prisons.  Inadequate training, understaffing, health and safety risks, unsanitary cells, lack of access to medical doctors or to therapists, and insufficient “recreation” time increase tension levels.  Staff will feel less safe.  These conditions make jails ripe for abuse.

The shocking actions of staff at one Mississippi Youth Detention Centre, Walnut Grove Youth Correctional Facility, was at the centre of a recent lawsuit.  Drug smuggling by correctional workers and sexual and physical assault of the young prisoners were just some of the horrific instances of abuse of power that took place occurred at Walnut Grove.[iii]

4)  Offenders may get out even worse than when they leave state prisons:

There is plenty of proof that prisoners, especially young ones, leave jail in worse condition than before, and that many are likely to recommit offences.   This problem will be exacerbated when jail conditions are worse, when there is greater abuse, less access to education, and less counseling and therapy.

5) The ultimate cost to society is much higher:

While governments may enjoy a brief windfall when they sell prisons to third-parties, society will pay a greater and more significant long-term cost: greater mental health problems, greater recidivism, more disease, inadequate levels of education and training, potentially more expensive law-suits, the list goes on.  Every flaw and every evil associated with imprisonment will multiply.

In the end, a strategy with the aim of reducing costs short-term could make everyone bankrupt, both financially and morally.

6) Diminished incentive to explore and implement alternative dispute resolution, restorative justice and other initiatives that require would decrease imprisonment:

If a government is locked into a 20-year contract to supply a firm with commoditized people, then how can they honestly implement processes that might result in a breach of that contract?

Despite the many problems with private prisons in American jails, the trend doesn’t seem to be stopping, as evidenced by CCA’s recent offer to 48 American states to buy their correctional facilities in exchange for certain guarantees by the state.

At least one firm has seized the opportunity to knock on Canadian government doors for business opportunities in prisons.

If we don’t watch out, the same problems could reach us here, in Canada.

With the closure of Kingston Penitentiary, and the expected increase in our prison population, which will result directly from the “tough-on-crime” changes made by the current government, we in Canada will see a rise in the cost of maintaining our prisons.

With a government whose rhetoric, at least, is focused on less public spending, one wonders how all these added and mounting costs will be covered.

Could some of these costs be ultimately “covered” through privatization?  Correctional Services of Canada has urged Vic Toews, Canada’s Minister of Public Safety, to consider the privatization of at least some services, such as cleaning and food preparation in federal institutions.  GEO Group, the very “enterprise” that ran the Walnut Grove facility where young people were sexually assaulted by the staff, met with Mr. Toews last October and lobbied the government to privatize its jails, or at least some portion of its penitentiaries services.[iv]

Julie Carmichael, a spokeswoman for Vic Toews, has said, “We have no appetite to pursue fully privatized prisons.”[v]  But that begs the question, “What are you considering privatizing?”

Despite claims by the Canadian government that it is not considering the privatization of prisons, the current trend in the criminal justice system seem to carve a different path—one ripe for handing over the responsibility for running jails to companies focused on making a million bucks.

Perhaps it’s reassuring that our one affair with private prisons (in Penetanguishene) was a short-lived one. But people also have a habit of flirting with failed experiments, in part because we forget, in part because we don’t pay attention, in part because of the misguided notion that “saving money” is both just and not costly, in the long run.

Mostly, however, so long as we believe that it is morally justifiable to treat human life, liberty and dignity as simply a function of the market equation, we will manipulate it, dispense with it, and mistreat it, just as we always have.

Here’s the recap:  One member of the police force accidentally disseminated a mock news release that he authored to the media.   He meant it as a “joke,” to be sent internally to other Thunder Bay police officers.  He didn’t mean it for the public eye.  He headlined his news release, “Fresh Breath Killer Captured.”  The reference, of course, is to the fact that the suspected killer of a Native man, who was found in an area allegedly frequented by people who drink mouth-wash to get drunk, had been arrested by the police.  Or perhaps the officer was referring to the suspect, who is also a Native man (can’t rely on the grammar for an accurate understanding of the headline.)

Maybe it’s needless to emphasize that the headline was offensive, prejudicial, and racist.

Or maybe that’s precisely what needs emphasis.

Apparently, the Thunder Bay Deputy Police Chief, Andy Hay, and Thunder Bay’s Mayor, Keith Hobbs, who necessarily sits on the Police Services Board, don’t think that the comment was offensive, racist, prejudicial, or a problem at all.  Hay claimed that he didn’t think the e-mail reflected a “racial issue.”  And Hobbs told the media that the media is making something out of nothing, and that the e-mail news-release “has nothing to do with race.”

Neither the Deputy Police Chief nor the Mayor seemed to believe that the comments were worth getting upset about.

To make things worse, the police declared their view that race was not an issue before any internal investigation was completed.  This conclusion was not only premature, but it minimized the offensiveness of the e-mail.  Effectively, they dismissed the issue, further offended, closed the doors on, and alienated the families and people involved.

Seeing that the police force had already made up its mind about the nature of the email, three First Nations communities decided to file a human rights complaint.

That’s when the police got upset.

Chris Adams, the Thunder Bay Police’s Executive Officer, claimed that the police are “disappointed” by the decision of the deceased’s family and the three communities to file a complaint against the police.  Police Chief J.P. Levesque said that he was “discouraged” by the decision to file a complaint.

Not to be outdone, Police Association President Greg Stephenson said that his members are “outraged” by the complaint, and that the claim is “counterproductive to the meaningful partnerships that we have built between police and the citizens.”

The police have called the filing of the complaint a “step backward.”

It appears that the police have got it backward.

It was the officer’s e-mail that set back previous efforts to build bridges.

Perhaps such set-backs are occasionally to be expected.  In such cases, it is the response that matters.  Unfortunately, the police response hurdled back the efforts at cooperation.

And since there was an unwillingness to view these slurs as racial, as both reinforcing stereotypes and mocking a tragic and complex social problem, the human rights complaint may give everyone precisely what is needed: a chance at meaningful mediation, systemic education, and further police training.

(post-script: Thunder Bay’s Mayor, while maintaining that the media is insensitive and that the email simply displayed, “dark humour,” has apologized for the hurt caused by the e-mail, in his position as Mayor, and not as a member of the Police Services Board of Thunder Bay.  The PSB is expected to issue an apology later today: http://www.tbnewswatch.com/news/236937/Hobbs-apologizes )

Sources:

Sheena, Farzaneh and a third classmate were walking in the crowded halls of their junior high,  joking around with one another.  Sheena and Farzaneh grabbed Kim’s scarf and threw it to one another.  After Sheena threw it, she did not see what happened to the scarf, the bell rang, and the girls went into their classroom.  Kim could not find her scarf.  Upset, she reported it to a teacher.  The police were called, and Sheena and Farzaneh were both charged with theft.

Sahir and James were Grade 9 high school friends.  One day, for no clear reason, they removed one of the school’s fire extinguishers and sprayed it all over an empty portable classroom.  The police were called and Sahir and James were both charged with possession of stolen property (the fire extinguisher) and with mischief.

Mira told the police that Katrina, a landed immigrant, a wife, and a mother of two children, aged 7 and 5, hit and broke her camera at a cultural event attended by hundreds of people.  The damages were estimated at $500.00.   Without conducting any further investigation, the police went to Katrina’s home, and violently arrested her in front of her two young children.   Katrina was charged with mischief.  After a year-and-a-half in the criminal justice system, tremendous hardship, and lasting psychological harm to Katrina’s children who became fearful of the police, the Crown Attorney withdrew her charges.

In a different time, in a different place, all of these interactions might have been dealt with reasonably, rationally, and by the community.

In the lost scarf scenario, the teachers, the principal or even Kim’s parents, might have sat down with Sheena and Farzaneh, found out if the incident was truly an accident or a case of excessive teasing.  They might have talked to Sheena and Farzaneh’s parents, and enlisted everyone’s help in finding or replacing the scarf.  They might have engaged in the kind of conversation that would have helped Sheena and Farzaneh see the impact of their actions, especially if they were bullying Kim.  Kim would have felt heard and empowered, and Sheena and Farzaneh would have helped in the healing.

Sahir and James may have received a stern talk from the principal and their parents.  Maybe they would have been grounded.  Maybe they would have been suspended for a couple of days.  They would have helped with the clean-up of the classroom and perhaps paid for any damages.  They would have, in real terms, been responsible for their actions.  And they would have continued their studies, without the stigma of a criminal charge.

In Katrina and Mira’s case, the police could have investigated the case further, instead of attacking and arresting Katrina in her home, in front of her children.  They could have easily found out that another person claimed responsibility for bumping into the camera; and that it was an accident.  They could have simply called in Katrina, who would have gone into the police station and told them her version of the events.  There was no need to treat her so violently.

In all of the above scenarios, the community and the police had several options available to them to deal with each case comprehensively, responsibly, and in a way that would have satisfied everyone, without causing further harm.  Instead, everyone abdicated their own responsibility and immediately opted to use a sledgehammer to kill an ant.

Everyone reached for their guns.

Sheena and Farzaneh, two young girls who had never been in trouble with the law before, were now viewed as “criminals.”  They had to take time off school to appear in court several times.  They were dragged through the criminal justice system.  Police time, court time and legal aid, all limited resources, were wasted on the kind of thing that many view as normal, if undesirable teenage behaviour.

Sahir and James, neither of whom had a criminal record, also got their first taste of an expensive and at times disorganized criminal justice system.  Rather than feel responsible for their actions, they felt the heavy hand of the law and the unfairness of a disproportionate response to their actions- actions which, again, at different times, would have been dismissed as “boys will be boys,” as letting off steam.  Actions which did not harm any one individual.  While we don’t have to excuse or dismiss negative behaviour by young men, there are surely other means of dealing with Sahir and James’s actions than criminalizing them and having their case occupy the criminal justice system for well over a year.

And yet, while every one of us, citizens and politicians, complain about the amount of time and money it takes to get issues resolved in courts, no one is willing to take the simplest, most rational, most sensible step:

To really reduce congestion in the courts, we’ve got to have less cases enter the system, in the first place.

Some cases just don’t belong in the criminal justice system.

There are more effective, more humane, and cheaper ways to deal with some problems.

But instead, we blame not having enough resources.  Instead, we blame defence lawyers for standing up for their clients’ rights and ensuring that our legal system does not become abusive.  Instead, we make laws that widen the net that traps people into the justice system.  Instead, we make mandatory minimum sentences, which will result in more people opting for a trial, as opposed to pleading guilty, therefore clogging the system more.  Instead, we take away money from those programs (such as restorative justice ones) designed to resolve conflicts in more meaningful ways that cost less, have greater positive impact, and are less punitive.

Think about it: if you want to reduce hospital and health costs and wait time resulting from smoking, would you hand out more cigarettes, make them easier for young people to obtain, build more hospitals, or would you invest in preventing smoking, in the first place?

If you want to reduce congestion on the roads, would you take away the bicycle lanes, make a rule that everyone has to drive to work, reduce public transit services, or would you make it easier for people to get to their destination without having to drive?

The most effective way to reduce any kind of traffic is to deal with the problem at the point of entry.  Everyone of us, and in particular actors in the criminal justice system, need to take responsibility for this.

Parents and educators must demand that schools and the police make greater efforts to teach, preach and practice conflict resolution skills.  Let’s not waste resources by calling the police for every lost or broken item.  Let’s abandon our zero-tolerance policy toward any aberrant act.  Let’s focus on meaningful options for conflict resolution.

Our police should also be trained to avoid laying charges, where the actions are minor and where other, more effective forms of conflict resolution exist and can be helpful.  Any criminal lawyer can make a long list of cases where clients were charged with petty offences for actions that were hardly dangerous and that can be dealt with better in other ways.  Any criminal lawyer can tell you of cases he or she had where, had the police conducted a fuller investigation, they may not have charged the client.  Any criminal lawyer can make a list of cases where there was barely any reliable evidence against their client.

Once the police charge these people, the cases enter the criminal justice system and stay there–rotting, delaying justice, labeling, stigmatizing, and frustrating accused and victims alike.

Crown Attorneys generally do not have the time and sometimes lack the courage, at an early stage, to just pull out cases that don’t belong in the courts.  Their policies and directions need to change, as well.  That is a crucial step in reducing court congestion.

As a community, we need to be ready to deal with conflicts through mediation and other restorative justice means.  As educators, we need to teach young people to understand the impact of their actions and be accountable.  We need to help victims feel heard and empowered.  We need to help accused persons feel connected and capable of making other choices.

We need to make everyone responsible for the solution, rather just hold the criminal justice system responsible for everyone’s failures.

We need to train our officers to solve conflicts more peacefully and collaboratively, to speak, engage, build trust and help find solutions.  And we need to give Crown Attorneys the time, the direction, and the freedom to examine files early on, to determine if the case before them belongs in the criminal justice system, in the first place, and to determine if it should be resolved through alternative means.

It turns out that the best and easiest way to reduce court congestion is also the most sensible, the most ethical, and the most responsible option.  We need the political will to implement it.  And the political will will come only when voters demand it.

That is how often Toronto Police Chief Bill Blair employed the word “tribunal” in his May 16^th press conference relating to the OIPRD report that dealt with police behaviour during the G20 in Toronto.  He used the word “tribunal” to refer to potential misconduct hearings against police officers whose cases the OIPRD has asked the Chief to deal with under the Police Services Act.

In this same press conference, Chief Blair refused, yet again, to concede or accept that there were mass violations of citizens’ rights or to apologize to those whose rights were so blatantly and shockingly violated.   He repeatedly claimed that he will only hold police officers accountable for misconduct if such misconduct is proven on the basis of evidence given before a “tribunal.”

The trouble is, there is no “tribunal” to deal with police misconduct.

The word “tribunal” is not mentioned once in the Police Services Act.

Most people understand “tribunal” to mean an arms-length, independent, neutral body that has the final say in the matter before it, like a court.  A court is a kind of tribunal.

In Ontario, for example, we have the Human Rights Tribunal, the Rental Housing Tribunal, and the Workers Safety and Insurance Tribunal.

Adjudicators and prosecutors are appointed to these tribunals after a competitive process, whereby the positions are advertised, resumés are reviewed by committees, and qualified  candidates are interviewed.

No such process exists for police misconduct hearings.  There is no open, competitive application process.  There are no interviews by disinterested, distinct, and neutral third-parties.

It is the Chief of Police who appoints the prosecutors for police misconduct hearings. And it is the Chief of Police who appoints the person who will conduct these hearings.

The Chief, Bill Blair, the same person who has been called on by many to resign, or at least to admit that people’s rights were grossly violated during the G20 under his watch, is the one who appoints the prosecutor and the “adjudicator.”

This is no arms-length adjudicative body.

There is a misconduct hearing.  And the Chief decides who prosecutes and who adjudicates.

This is not a “tribunal.”

Calling such a body a “tribunal” requires a stretch of the public-relations mind.

One might say, so what?  So what if the Chief used the word “tribunal?”  There is still a hearing with an adjudicator and a prosecutor.

The Chief is an extremely intelligent officer, well-familiar with the law, particularly the laws which concern his job, his duties, and the members of the Toronto Police.  He knows the Police Services Act.  He refers to it, and refers journalists to it.  He surely knows that the hearings that are held at Police Headquarters, where he appoints the prosecutors and the “adjudicators”, are not like the daily hearings that take place before the province’s many real tribunals.

I believe that Chief Bill Blair used the word “tribunal” quite deliberately.  And, in the context of the G20 and its aftermath, the use of the term “tribunal” is problematic and misleading.

Let’s outline this context:

•  Two years have passed since the G20.   Still, there has been no apology to the people of Toronto and others, despite the abundant and overwhelming evidence that shows egregious violations of people’s rights.

•  The Chief could have started his own investigations into any number of misconducts that were apparent to him.  He did not need to wait for the OIPRD report or any other report.  He did not even need to wait for any member of the public to complain to him.  Under s.76 of the Police Services Act, the Chief may make a complaint against any member of his own force.  But the Chief did not take this step against the perhaps hundreds of officers who could have been identified in any of the videos made public after the G20.

•  Had the Chief started his own processes, more officers may have been held accountable for their misconduct.  This is so because the Chief has easy access to information that can help him identify officers (whereas the Special Investigations Unit does not, for example).  More significantly, a speedier response, which was available to the Chief, would have meant that officers could not avoid responsibility simply by retiring, joining another force, or resigning their positions, which place them outside the jurisdiction of the Police Services Act.  Already, at least two senior officers identified by the OIPRD have escaped any hearings and accountability through retirement.

•  The Chief has continuously rationalized police officers’ actions and avoided ever acknowledging that there were mass violations of people’s rights.  He has never apologized for the events of those few days, even when asked point blank to do so.

•  He has minimized the significant abuses of power that occurred, by repeating that officers faced an immensely difficult task (which may be true, but is certainly not a justification for excessive use of force and violations of people’s rights), and by claiming that 20 or 30 hearings, when over 5000 Toronto Police officers served during the G20 weekend, is actually a low number.

Most importantly, by his continued reference to a “tribunal” and a “court of law” as the places where the evidence will be heard and where decisions will be based on fact and law (as opposed to “opinion,” which he implies is what the OIPRD has given), Chief Blair attempts to imply that decisions will be made by an arms-length, neutral court.

It’s not just that the Chief, himself, appoints the prosecutors and “adjudicators” for these hearings.

It is the Chief, himself, who has the final say for what happens to those officers.

In other words, if a finding of misconduct has been made by the person conducting the hearing, then it is the Chief who decides whether and what penalties that officer should face.  He can decide whether no action will be taken, whether the officer should lose a couple of days’ pay, or whether he or she should be dismissed from the police force. (see s. 84 of the Police Services Act.) In essence, the Chief is the final adjudicator.

This is hardly a model of neutral and impartial adjudication, especially since Bill Blair was the Chief during the G20.

The Chief has used the “tribunal” reference as a shield.  He has used it to defer and eschew any negative conclusions about what his officers and the police force did during the G20 weekend in Toronto.  He has used it to say that until the facts and issues are decided before a court of law, he can’t and won’t apologize, assign responsibility or admit that the police grossly breached people’s rights.

The Chief’s response, in my opinion, avoided responsibility, was at times evasive, at times unresponsive, and occasionally misleading.  Over the next few days, I will look at some of these problematic statements.  (One glaring problem a day, more or less)

Avoiding responsibility: the OIPRD report just expresses an “opinion.”

The OIPRD investigators painstakingly reviewed hundreds of hours worth of evidence (police officers’ notes, videos, photographs, interviews, and so on) before coming to the conclusion that during the G20, police officers did violate citizens’ individual and civil rights and liberties and also that excessive force was used on a number of occasions.

Despite the abundance of video footage (for example, the videos that show hundreds of innocent protestors and by-standers under siege by the police for several hours at Queen and Spadina), and personal accounts that confirm, with certainty, that people’s rights were violated, Chief Blair calls the report’s conclusion on this issue merely an “opinion.”

Chief Blair was asked by one journalist whether or not he accepts to rejects the report’s finding that people’s rights were trampled on by police officers (at 17:03 in the video, below).  To this, the Chief responds,

“Well, I think that it certainly requires a hearing.  And generally, I think overwhelmingly, the rights of our citizens were protected that weekend.  There are individual instances where the OIPRD has said that some things, some individual conduct, may have been a violation of rights.  I think that needs to be heard, in a hearing.  Evidence, not opinion, but evidence needs to be brought forward.  And it needs to be brought forward in a hearing according to the rule of law and due process.”

True enough that when the OIPRD refers a matter to the Chief, a hearing under the Police Services Act needs to be conducted before a finding can be made, under that Act, against a police officer.  And yes, the OIPRD’s investigative conclusions are based on a “reasonable belief.”    But to call the OIPRD’s finding that rights were violated during the G20 an “opinion,” and then to imply that, therefore, one cannot conclude that rights were violated on a large-scale, is a mark of denial, evasion, or of eschewing responsibility.  The Chief’s refusal to admit as fact that citizens’ rights were violated, often at-large, and his declaration that the findings in the report merely express an “opinion,” confirm that he continues to deflect and avoid responsibility.  

To many, Chief Blair’s reaction does not come at a surprise, but reflects a continuing sad state of affairs. 

The Chief has said that he is committed to “learning lessons” for the future.  Before he can learn anything, though, he must be willing to call things by their correct names.  Until the Chief (and indeed, our political leaders) are willing to call police conduct during the G20 what it was: improper, excessive, shameful, frightening, and unlawful, we are not going to be learning any lessons for the future.

(next….There Is a Tribunal to deal with police complaints?)

Chief Blair’s press conference May 16, 2012