The Harper Government: Making Our Streets and Communities Less Safe, Pounding the Vulnerable, and Snubbing the Supreme Court of Canada

How do you defy the highest court in the land?  

If you are the Conservative federal government, you replace a simple, straight-forward law with a gargantuan one that shouts, “In your face, Supreme Court!” In other words, you turn the court’s decision on its head.

That’s what Harper’s government did last Thursday when it introduced Bill C-65. The Bill is their response to the Supreme Court’s unanimous 2011 decision which declared that the Minister of Health must grant Insite, Vancouver’s supervised drug injection facility, an exemption under the Controlled Drugs and Substances Act, so that it can continue to provide health services.

Drug injection facilities are more than a place where drug addicts go to use drugs safely. The facilities promote public health by minimizing the harms associated with street-level, illicit drug use. They reduce incidences of drug overdose, the transmission of diseases through needle sharing, and the rate of serious infection. They increase public safety by reducing crime associated with drug use. The clinics, staffed by doctors, nurses, and therapists trained in dealing with addictions, also provide counselling, referral services, and immediate help to those who are ready to curb their addictions. In turn, all these benefits result in reduced societal costs associated with drug use.

But the Federal government did not like the Supreme Court’s telling it that it should continue to grant Insite the exemption it had since 2003.    

To get around the judgement, the government devised Bill C-65.

Under current legislation, the Minister may exempt any person from the application of the CDSA if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. Plain and simple. The entire section uses up 70 words.  

But under Bill C-65, those 70 words are replaced with 2,627 words (not counting the preamble), most of which set up one colossal obstacle after another for any group that hopes to set up a safe injection site.

Under the Bill, applicants will be required to submit reports and letters from the provincial Minister of Health, Minister of Public Safety, the local municipality, the local police, and health professionals, as well as research, statistics, information on trends and other data, and also, significantly, reports on consultations held with a “broad range of community groups from the municipality,” including a summary of the opinions expressed, copies of all written submissions, and submissions on what applicants intend to do about those community concerns. All in all, there are 26 (or more, depending on how you count it) complex, costly, and onerous conditions that must be fulfilled before the Minister will even consider whether or not to grant an exemption.

One might argue, “What is wrong with having stringent requirements for setting up places where, after all, illicit drugs are going to be consumed?” Doesn’t that ensure that these clinics are safer?

On the face of it, the requirements do not appear unreasonable. But the Harper government is well aware of the societal benefits of these facilities. And so, it should advocate for their increased use, where justified. Instead, the government is erecting insurmountable obstacles in the way of anyone who may want to build a safe-injection site.

The truth is that Bill C-65 is not intended to ensure improved safety in the creation of safe-injection clinics. The real intention behind the Bill is to stop any such attempts dead in its tracks.

On the same day the government introduced the Bill, it also started a political public campaign to oppose the building of safe injection clinics anywhere.  

Jenny Byrne, the Conservative party’s main tactician, posted a fear-mongering, misleading message on the Conservative party’s web-site. The posting, entitled, “Keep heroin out of our backyards,” both misinforms and misleads the public, and capitalizes on fears based on insufficient information. It suggests to readers that such clinics are about to be set up in every neighbourhood in the country (which is simply untrue), and aims to collect the names of those opposed to such facilities, to allow for the most efficient and effective opposition, should there be a proposal for a safe-injection facility in any municipality. The message from the posting is clear: “We are totally against such clinics, and we’ve introduced the bill to make it harder for similar facilities to be set up elsewhere in the country.”

It’s a sad but unsurprising position and tactic by the Conservative government.

Instead of leading, the Conservative government puts up roadblocks.

Instead of increasing public safety and reducing harm, the Harper government perpetuates the conditions that lead to greater harm and risk to public safety.

Instead of implementing preventative measures that will reduce public spending in the long-run, the Conservative government adopts punitive, harmful policies that will cost us more.  

Instead of educating and informing the public about the truth behind addictions, harm reduction, and the benefits of such facilities, the Conservatives engage in a campaign of misinformation and fear-mongering built on simplistic one-liners.

They introduce a Bill that may make it nearly impossible to build another safe-injection site.   

The government surely knows that the law may not stand Charter scrutiny. But the Conservatives don’t care about that. They will push ahead with the Bill because it makes it sound like they care about (some) Canadians.  

But in doing so, the Harper government harms not only those with addictions, but all Canadians.  

In the process, and as an added bonus, the Conservative government also flips its finger at the highest court in the land.

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“Not Criminally Responsible:” Not Getting Away with Something

Richard Kachkar’s not criminally responsible verdict has divided observers and is fueling the debate on Bill C-54, the Bill to make NCR reviews more restrictive.

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.

 

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Harper’s Crime and Punishment Agenda: The Top Most Offensive (and Destructive) Laws

It feels like a week does not go by without the Harper government’s introduction of a new law or initiative purportedly aimed at making our “streets and communities safe.”  Rather than make us safer, however, these crime and punishment laws are leading us toward disaster.

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

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?


[i] “Do Sentences of Imprisonment Reduce Reoffending Rates for Either Men or Women?” Criminological Highlights, Volume 13, Number 2 (February 2013) Centre for Criminology and Social Studies, University of Toronto.

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Why Do Convicted Cops Get Lighter Sentences Than the Rest of Us?

The Crown is appealing the sentences of the former Toronto police drug squad officers who were convicted of perjury and obstruction of justice and received 45 day conditional sentences (house arrest) on January 4th of this year.

 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.

 

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The Conservatives’ Push to Incarcerate the “Mentally Ill”

Say one thing, do the opposite.  That sums up the Canadian government’s approach to the treatment of the mentally ill in the criminal justice system.

“(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.

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November 30, 2012 · 10:04 pm

Bullying the Bullies: Is Criminal Law the Appropriate Response to Bullies?

It has been just over a week since Amanda Todd’s tragic and heart-breaking suicide, which she committed to end the pain from the endless torment of the bullies in her life.  A week filled with the public’s sadness, questions, and soul-searching.  A week of outcries:  “How did we stand by and let this happen?”  “What can we do to prevent another Amanda Todd tragedy?”  “Bullies should be punished immediately and harshly!”

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.

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The Pursuit and Perils of Prisons for Profit

Corrections Corporation of America (CCA), a Nashville-based privately owned company, has made a sweet-sounding offer to corrections officials in 48 American states: “We’ll buy your prisons and run them, if you guarantee us a 90% occupancy rate for the next 20 years.”

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.

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