Tag Archives: criminal justice

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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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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Empathy: Tap It or Teach It, but Definitely Integrate It

Empathy is poised to become the buzzword of the 21st century– the defining trait of our social and political evolution.  Empathy will be to this century what “rights” was to the 20th century and “equality” was to the 19th century. 

As a word, a concept, and a goal empathy is omnipresent.  From parenting newborns to teaching college students, to training doctors and employees of profit-driven ventures, to effecting radical political and social change, empathy is becoming the prevailing philosophy. 

Organizations, such as Roots of Empathy and Seeds of Empathy, design and bring to schools programs aimed at teaching primary school children and preschoolers to have more empathy.  A school in Cambridge, Ontario, recently raised $6000 to hold an anti-bullying workshop which focuses on building empathy.[i]    Yet another initiative, “The Empathy Project” of Capital University in Ohio, aims to teach college-aged students to have greater empathy.[ii]   Political theory students study Franz de Waal’s The Age of Empathy as part of their university curriculum.[iii]  Author and political advisor, Jeremy Rifkin, explores all aspects of empathy and encourages that we embrace empathy to improve our world.[iv] And empathy has entered the profit-driven workplace and is making an impact, with books such as Wired to Care: How Companies Prosper When They Create Wide-spread Empathy.[v]  

Yet, at the political level, whether domestic or international, we seem to be shirking from empathy and moving toward more division, blaming, and short-sighted selfishness.  Political divisions appear to be getting starker and more hostile.  In the United States, Canada, and France, political parties that emphasize separation and encourage the “us” against “them” approach flourish.  In Canada, our government and, as a result, we, move toward a more individualistic and vengeful justice system, and build more prisons and impose harsher and longer jail terms, rather than develop effective programs that will prevent crime and will heal those affected by crime, including offenders.  And in an era of cut-backs, international aid and social programs are among the first targets of our political representatives.

It appears that the more some groups in society move toward inclusion, understanding, togetherness and empathy, the more other segments, politicians and governments recoil and seek to distinguish themselves from and set themselves above others. 

Do all human beings have the capacity to identify with others and their experiences? Or are we doomed to an everlasting conflict between those who want to understand and include and those who want to judge and exclude?  Can we teach empathy to everyone?

There are certainly findings that suggest that empathy can be lost or eroded over time.  A study from the University of Michigan at Ann Arbor concludes that over the last 30 years, college students’ self-reported levels of empathy have decreased and their narcissism has increased.   Several studies have shown that medical students becomes less empathic over the course of medical school, while medical interns become less empathic as their internship progresses.     Other anecdotes suggest that while many young people participate in community and volunteer work, the lessons learned do not stick-  they do not translate into behavioural changes and routine activities where a person can make a real difference.  

But there are also encouraging studies.   Teachers whose students have participated in the Roots of Empathy programs report a decrease in aggressive behaviour by their students.  They also exhibit higher levels of pro-social behaviour.[vi]   Furthermore, efforts into teaching empathy to medical students and to people in the workforce appear to lead to some success.

Like so many other skills, empathy is best learned at a young age.    And what is more reassuring is that we don’t actually need to “teach” empathy.  Unlike knowledge of certain concepts, such as quantum mechanics or even reading, we are not born void of empathy.  We do not need to have our cup filled with empathy from scratch.  We appear to be born, “soft-wired”, as Jeremy Rifkin describes it, with empathy.  We may have different levels of predisposition to empathy, but we all have it, at some level.  Studies of primates and of human babies confirm this finding.[vii]

Since every healthy baby is born with empathy, the task for parents, educators, and the rest of us is to ensure that we do not repress that empathy.  We must encourage and “hard-wire” the empathy that exists in our children, rather than to replace it with anger, jealousy, greed, and a desire for material success that necessitates keeping others down.  And there are plenty of resources to help parents and educators in this invaluable quest. 

True, not all children possess the same level of empathy.  And they definitely differ in their abilities to act on that empathy.  But our acceptance of children’s different abilities, in particular their capacity to share and show kindness, and our appreciation for and encouragement of such kindness—will ultimately encourage more empathy from them. 

What will all this empathy honing and cheerleading mean for justice issues?  What will happen if we change our approach to crime and justice from an individualistic, punishment-oriented one, toward one that uses empathy and brings together offenders and victims, allowing each to understand and feel the pain of the other?  Are the accusations of Canada’s Conservative Party, for example, that anyone who opposes more punitive responses to crime doesn’t care about victims justified?  Are fears that integrating empathy into crime and justice issues make us “soft on crime” valid? 

Empathy is not a new concept in justice issues.  Different societies have, at different times, dealt with crime in an empathetic, cohesive manner, one which contrasts immensely with our own punishment-oriented, individualistic and largely ineffective means of dealing with crime.  Healing circles have been used by Native peoples for centuries.  And the efforts to implement victim-offender reconciliation in the western criminal justice system have been growing. 

The Toronto Star recently ran an encouraging good news story about a high school in Toronto which has, for the past few years, used restorative conferences (much like healing circles and victim-offender reconciliation) to deal with conflicts among students.[viii]  The project has had visibly positive results. 

The proof for the effectiveness of restorative justice, which focuses on the involvement, understanding and empathy of all parties affected (not just one “offender” and one “victim”) is abundant.  Restorative justice is more effective as a means of increasing understanding and accountability, decreasing recidivism, and encouraging individuals and communities to work together. 

We must embrace and encourage empathy in our young, in ourselves, and especially, in our political representatives.  Empathic governing is simply better and more effective at achieving our goals of democracy, equality, peace and security.

Empathy begets cooperation.  Empathy thwarts adversity.  We need to hone it, to implement it, to use it to effect radical social and political change and to reach a higher level in human evolution. 

And then, in about a hundred years or so, we will latch on to the next big idea.

Take a look:

RSA Animate video on The Empathic Civilization:

Jeremy Rifkin on TVO:

The Six Habits of Highly Empathic People:


[i] Kate Hammer, “Schools Teach Empathy As a Way to Combat Bullying.” Theglobeandmail.com, Wednesday, April 25, 2012.

[ii]  Go to: http://empathy.capital.edu/, or check this article on Dispatch.

[iii] For example, students of Political Theory at the University of Toronto study Frans De Waal’s Age of Empathy.

[iv] Rifkin, Jeremy.  The Emphatic Civilization. (Putnam, 2009). You can aslo see portions of Jeremy Rifkin’s appearance on TVO’s The Agenda by clicking here.  Or watch the RSA Animate summary here.

[v]Patnaik, Dev, and Mortensen, Peter.  Wired to Care: How Companies Prosper When They Create Wide-Spread Empathy (Pearson Education, 2009.)

[vi]Schonert-Reichl, K. A., Smith, V., Anat Zaidman-Zait, A., & Hertzman, C. (2011) “Promoting Children’s Prosocial Behaviours in School: Impact of the “Roots of Empathy” Program on the Social and Emotional Competence of School-Aged Children.”     See also http://www.rootsofempathy.org/
[vii] See Rifkin’s TVO interview, supra and Frans de Waal’s Age of Empathy

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Justice for Victims: Less Jail Time, More Face Time

While the Federal Conservative government is spending billions of dollars to build more prisons, to jail more people, and to punish with greater vengeance, all in the name of tackling crime and of justice for victims, the province of Alberta apparently cannot come up with a measly $351,000 for the one measure that is proven to actually help victims and possibly to reduce crime: victim-offender reconciliation.

Alberta’s Public Security Department announced on Monday that it is ending the annual $351,000 grant for restorative justice programs, allegedly because economic times are tough.

Victim-offender reconciliation (V.O.R.), a form of restorative justice, is one of the most effective and humane means of dealing with crime. It involves mediated or facilitated meetings between offenders and victims. The aim of V.O.R. is, on the one hand, to ensure that offenders comprehend the full human impact of their actions, and that they voluntarily –and genuinely–take some responsibility for those actions. Equally significant, reconciliations help victims cope with their trauma and reduce their fears by humanizing the offender. They help victims move on with their lives. When done right, victim-offender reconciliations may even lead to the wondrous result of the victims helping the offenders overcome those life obstacles that lead them to commit the crimes.

If politicians truly care about victims and want justice for victims, they must look beyond the impulsive urge for punishment for the sake of punishment. They must look at processes that in fact make victims feel whole and restored. Harsh imprisonment may satisfy a desire for “justice” as revenge, but it does not bring about true justice. It never helps victims actually cope with their trauma. Yet incarceration and punishment continue to be the reckless and irrational mission of law-and-order governments.

Furthermore, as a society, we continue to use avoidance and punishment to deal with problems and conflicts that, in fact, require conversation, reflection, commitment, responsibility and empathy.

In its essence, crime is the infliction of pain (sometimes horrible and tragic) by one person on another. Friends sometimes do this to each other, though on a different scale. It is true that when wronged by a friend, some people choose avoidance and simply cut off a relationship. But we know that the better and more effective way of dealing with that pain is to confront the friend and to communicate with them. Why would it be any different if some other human being causes us pain? Why would we choose avoidance and punishment, rather than communication and resolution? Why would we not seek to open the doors to victim-offender reconciliation?

The path of victim-offender reconciliation is not easy- least of all for the offender. It is demanding. It can be emotionally draining and gruelling. It compels the offender to deal with his actions and their consequences, rather than bury the memories, ignore responsibility, or rationalize his behaviour. It impels the offender to make amends, thereby helping the victim and improving his own life. And because V.O.R. forces the offender to confront the victim, and mobilizes everyone to deal with the underlying issues that lead to the criminal behaviour, it is effective.

After all, what is more likely to reduce recidivism: an authentic, deep and personal examination of one’s actions, their consequences, and the acceptance of responsibility, or a jail cell where an offender is taught little conflict management or other skills? What is more likely to empower victims and to help offenders change direction: a process that encourages everyone to tackle the underlying factors that lead to the crime, or a prison sentence where the offender develops bonds with others who are also leading a life of crime? The benefits of restorative justice to the victim who heals emotionally and to the offender who humanizes his victim are simply greater than any money-saving measure.

And while it is difficult to measure what the cost savings are, surely reconciliation is more cost-effective than imprisonment. The cost of incarceration is extremely high, ranging from $89,000 to $250,000 per year. This cost does not include the eventual costs to society of unemployable, beaten or unstable individuals, once they are released from jail.

But “law-and-order” politicians and our current Conservative government continue to charge anyone who opposes the backward and Draconian push for more jails and longer sentences as being “soft on crime.” They regularly accuse detractors of not caring about victims.

If we truly care about victims, however, we must help them cope and heal. Victim-offender reconciliation programs across North America have proven that the process of restorative justice can do just that, in a way that no tough sentence alone can ever do.

According to the CBC and the Edmonton Journal, the $351,000 per year grant (the equivalent of incarcerating two inmates for one year) helped victims and offenders in 218 criminal cases in one single year (2009). With each case bringing together at least one offender and often more than one victim as well as mediators, the $351,000 helped over 436 victims and offenders, and brought together 1000 or more people. Try stuffing that in a jail cell.

(To read the reflections of an ex-offender on restorative justice and the London riots, see this article: Restorative Justice After the Riots?)

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Note to (former judge &) electoral candidate: “Nix the Nuance. It’s an Election Campaign!”

Playing dirty in politics: no one likes it, but everyone expects it, especially during elections.

Routinely, attempts by idealistic candidates to make nuanced and in-depth analysis of issues is spurned, abused and replaced with shallow, simplistic statements, ungrounded assertions and mud-slinging.

One of the latest recipients of this mud-slinging is Liberal candidate John Reilly, a former Alberta Provincial Court Judge. On a radio interview with Calgary’s QR77, he discussed the Tory’s crime agenda. He attempted to provide some nuanced, realistic, thoughtful insight on mandatory minimum sentences. The Tories are hoping that this reasoned analysis will cost Reilly his political aspirations.

If you have not read over the transcript of that infamous and grossly misinterpreted radio interview, then reserve your judgement and discard any attacks you have heard so far. Read the transcript here.

On the program, John Reilly distinguished between two opposing views on the purpose of criminal law: punishment and vengeance versus reduction of crime and rehabilitation. He mentioned the hazards of Tory laws that will put thousands more people into our jails, will cost us billions, and will NOT reduce crime, but will have an overall harmful effect (which tends to be greater recidivism). When the conversation turned to mandatory minimum sentences, the former judge pointed out that you cannot treat all crimes the same way.

The host asked if there are occasions when someone should not go to jail after having committed an offence (and he listed a series of offences that are generally considered serious.) Reilly contended that in some cases, a jail sentence or a mandatory minimum sentence (as the Tories are proposing) of three years is not appropriate. The examples he cited were: some drug offences, some assaults causing bodily harm, and some sexual offences. In each case, he gave an example of a real offender that had been before him and why, in those circumstances, a mandatory minimum sentence of over two years was not appropriate (though a conviction and a different sentence, including jail, could be appropriate.)

If Judge Reilly had focused only on the small-time drug dealer and addict in need of help, or on his aggravated assault example of a drunk woman who seriously injured a man at whom she was trying to throw the beer in her glass, and argued that given the facts of those cases and the accuseds’ backgrounds, they should not be sent to jail for three years, no headlines would have been made. No one would have called his comments outrageous or shameful.

But then, heaven forbid anyone should speak of sexual assault with some nuance. In my opinion, it’s not that Harper or the Conservatives are champions of women’s rights and a protector of woman victims, but that they saw an opportunity to feed Reilly and the Liberals to the vultures, and they seized it. In so doing, they (and anyone else who outright condemned Reilly) removed all nuance and all intelligence out of the discussion of sentencing and mandatory minimum sentences.

But what did Judge Reilly really say? Did he say that men who commit sexual assault should not be held accountable? No! Did he say that no perpetrators of sexual assault should go to jail? No! Did he say that no doesn’t always mean no? No!

What he did say is that a judge needs to examine the facts of each case, as well as the accused person who is before him. (Judges routinely do this in every case. Is the person a first-time offender? Is he remorseful? Has he taken any steps to make a positive change? Was he in a position of trust? Etc. ) He said that there are different kinds of sexual assault, and that they should not all be treated the same.  Indeed, not every sexual assault deserves a three-year penitentiary sentence, and some deserve way more.

Harper and everyone else who’s vilified Reilly want to suggest that all sexual assaults should have an arbitrarily set minimum penitentiary sentence: whether you are a 19-year-old who makes a condemnable, wrong, and misguided decision (for which Judge Reilly never said you should not be held accountable) or a serial sexual predator who creeps into women’s homes at night and assaults them, or a priest in a position of trust who abuses young people in his charge. Judge Reilly was merely saying that these different accused persons should not be treated the same way. And he is right: take a hypothetical sexual assault example: an 18 or 19-year-old who has no prior convictions, who regrets his actions, wants to apologize, or to take some courses related to gender issues, one who made a terrible, wrong and one-time decision while intoxicated, should not be sent to the penitentiary for three years. A judge should be permitted to examine the entire context and make the call for the appropriate sentence.

It is even entirely possible that, in this specific case, the victim of the sexual assault, had she been involved in the decision-making, would have of her own free will and using her own sense of what happened, her own knowledge of the perpetrator and her own rational mind, asked for a less Draconian sentence than 3 years in the pen.

What is shameful is that even Reilly’s own party leader permitted the lies and misconceptions about what Reilly said to continue. In attempting to distance himself from Reilly’s alleged stance, Michael Ignatieff failed to seize an opportunity (I will admit, not the easiest one) of saying, “Hey, this judge never said we should overlook or go easy on sexual assault. He simply said that there are different kinds of criminal acts and they should be treated differently.” Igantieff could have further clarified that Reilly’s comments in no way exonerate or give an excuse to men who do not obtain a woman’s consent prior to any sexual acts. He could have even added that Reilly’s cursory description, in the circumstances, was problematic because it could mislead some idiotic misogynists to inappropriately conclude that a woman’s sexual attitude obviates the need to get her consent.  Instead, he said that Reilly’s comments were “outrageous” and “unacceptable.”

Ignatieff didn’t fire his candidate, but he did not stand up for truth, justice, intelligence and nuance either. Unfortunately, this cowardly attitude has been prevalent in the Liberal (and, to some extent, NDP) approaches to crime.

While Reilly did not use the smartest example, politically, to make his point, and while his explicit description of the sexual assault is too much for our conservative society and likely intensified the negative reaction, he did not, as the Tories would have us believe, excuse sexual assault or lay the blame for it on women.

In this last debacle, it was not just John Reilly who was turned into a dartboard and shot at by Conservatives, Liberals and the media alike. Justice was also made a victim. Humanity and our struggles were turned into a two-dimensional comic, where hyperbole ruled the day, context was completely ignored, and deep, rational analysis was sacrificed.

In the end, all Canadians lose when we eliminate any nuance and analysis from our discussions about the justice system.

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