Tag Archives: Jails

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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Stop This Bus, Mr. Oliver

Dear Mr. Oliver,

I imagine that if you are a proponent of the Omnibus Crime Bill, then you believe that it speaks for victims.  If your goal is to help victims, to allow them to heal faster, and to ensure that there are fewer victims, then I urge you to engage your colleagues and other members of the Conservative Party to abandon this Bill.

No doubt you are familiar with the many arguments against this Crime Bill.  There is, of course, the fact that higher jail terms and mandatory incarceration are not going to reduce crime or recidivism.  What is more, incarceration, particularly of people who have little or no criminal history or have not been jailed in the past is likely to increase their chances of recidivism.  These are the conclusions reached by study after study that deal with punishment and crime.  This consideration, alone, tells us that the Bill is, at best, a waste of resources.

But the Omnibus Crime Bill is more than misguided.  It is also enormously costly.  How can we justify the billions of dollars that will be spent on what is purely a mechanism for punishment, when our and the world’s economies are in such precarious positions, and when so many of our fundamental institutions are in need of support?  How can a government that advocates lower spending throw billions of dollars away in this manner?

You might say that it does not matter if the Bill does not reduce recidivism.  You might argue that the cost of the Bill in insignificant when one considers victims’ rights.

If we truly care about victims, let’s take the two steps that are the most likely to help.

If we truly care about victims, if we want to ensure that they feel secure, healed, and empowered, let’s invest in programs and processes that help them heal, feel secure and empowered.  Seeing a perpetrator thrown in jail may make people feel that justice has been done, but it does not take away their fear, it does not make them feel secure.

Punishment, throwing people in jail, and looking away, do not make victims feel that they have been heard, or that their loss has, at least, had some positive impact.

But we do have processes that are proven to help victims heal, that include the victim in a meaningful way, and that help victims feel that justice has been done in a way that no harsh sentence and law can.  Restorative justice and victim-offender reconciliation programs are powerful and effective means of meeting the needs of victims, while holding offenders accountable for their actions.  If we only take a portion of the money required to bring the Crime

Bill into effect and put it toward restorative justice efforts, then we are sure to help victims.  What is more, restorative justice is more likely to reduce recidivism, and it will cost much less than the billions of dollars required by this Bill.

Furthermore, rather than focusing on retribution and incarceration, we can take steps that ensure that we have less victims, in the first place.  Let’s invest in education, in the health of children, in support for young people and for  families, in particular families who live in poverty.  Let’s invest in prevention of crime, so that we have less victims.

There is nothing good in a Bill that creates mandatory minimums, removes discretion from judges who have heard all the facts of a case and the circumstances surrounding the facts, focuses simply on punishment, doesn’t do anything to reduce crime, and takes billions of dollars from Canadians and essentially throws it away.

I ask you to please listen to all the criticisms against this Bill.  I urge you to dissuade your colleagues from supporting this destructive project.  It cannot be easy to stop this fast-moving train, but conscience and ethics demand that you do what is required to stop this Bill.

I hope that I can count on you, my Member of Parliament, to do whatever is possible to take this Bill off the legislative table.

Dyanoosh Youssefi

Eglinton-Lawrence resident

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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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Jails: Do Not Expect Healing

Every once in a while, the media focuses on the dreadful state of our prisons, and the number of people suffering from serious mental health problems who are stuck in these institutions.

(For two recent articles on the topic, see  Kirk Makin’s reports in the Globe and Mail from January 2011, below:  http://www.theglobeandmail.com/news/national/why-canadas-prisons-cant-cope-with-flood-of-mentally-ill-inmates/article1879501/
http://www.theglobeandmail.com/news/national/prisons-grapple-with-increase-in-mentally-ill-female-inmates/article1884243/  )

Each time, these exposés reveal the same tragedies:  There are far too many people who suffer from mental health problems in jail.  Jails are not the appropriate place for the treatment of the mentally ill.  Jails and jail conditions often exacerbate people’s already compromised mental health.  Each time, it appears that we have a mental health “crisis” in our justice system.

But the mental health “crisis” is not news.  It’s been an ongoing problem and shame for our society.

Some readers may be surprised at what these reports reveal.  But the fact that those institutionalized for having committed society’s most condemned acts are, themselves, suffering, should not be a surprise.

A person who turns to crime, especially violent crime, or one who returns to crime repeatedly, cannot be whole.

Crime is rarely an option chosen by rational people who have decent options in life.  When a child is asked, “What do you want to be when you grow up,” the excited response is not, “I want to be a criminal.  I want to be drunk in public and do crazy things. I want to steal and beat up people, and shoot in a drive-by.” Crime is not the dream of a child.

And yet a chain of events usually leads some people to acts of crime.

In the majority of these cases, those people are not whole.  The chain of events chipped away at their mental health, at their stability, at their innocent and hopeful view of life.  The chain of events stripped away many of their options.

Of course, such circumstances generally do not abdicate an offender of responsibility.  But given our role in perpetuating these conditions, we must change our approach to crime.

After all, who else is responsible for the damage?  Who else is responsible for the untreated depression?  Who is responsible for the suffering and harm that result from a broken mental health system that often offers people drugs but no other support?  Who is responsible for the neglect and abuse a child receives?  Who is responsible for ignoring that neglect and abuse, for not lending a hand to the family that so badly needed it?  Who is responsible to parents who work at full-time minimum wage jobs, but who then don’t make enough to buy food and pay the rent, let alone save for college, pay for tutoring, or get qualified and sufficient counseling when needed?  Who is responsible for the lack of love, care, and attention in a child’s life, because his or her parent(s) were drunk, manic, or absent?  Who is responsible for throwing the mentally ill in jail (and then acting disappointed and angry, when that person commits another crime?)

We are.  The community is responsible.

We saw it coming and we turned away.

We saw the need for help and we ignored it.

We found it easier to say, “Well, the parents are responsible.”  “A tough childhood doesn’t justify turning to violence later.”

Yet we know that certain factors certainly lead to deteriorated mental health.  And we know that people with serious mental health problems are disproportionately represented in our jails.  We know that certain factors are more likely to lead to a life of trouble with the law.  We know all this, and yet we ease our conscience by abdicating our responsibility.  We know that A leads to B, and we do nothing to intervene.  We provide no support.  And then we cry in shock, shake our heads, and condemn people when A did lead to B.  We throw people in prison, when we know that prisons are ineffective as a place to rehabilitate people.  We relegate the mentally ill to jails, but provide them with no services to address their ailments.

And then we do it all over again, knowing what is to come.

If we want to fix it, we have to prevent it.

If we want justice, we have to seek it together, right from the start.

We have to collaborate to make us all: victims, offenders, and the community, whole.

Imagine what would have happened that first time a young man was charged with theft or robbery if we did things differently.  What if, instead of dealing with him in court, where we largely ignored him or his victims and where just handed him a quick sentence (whether apparently lenient or apparently harsh), we involved him, his victims, and his community?

What if he really listened to and heard about the impact of his actions?  What if the victims and others in the community listened to what got him there?  What if they caught the beginnings of a mental illness?  What if the community observed that the young man had little support at home: his single mother was working around the clock at jobs which provided little security.  He has very few of those extras that might make our children’s lives rich: the security of not worrying about where his food will come from, knowing that his father will be home to speak to him about his day, loving and available grandparents, engaging activities, and most importantly, the knowledge that he is moving forward, that there is hope for progress in his life, that he can make an improvement in his life and his family’s life.

What if everyone was involved in righting this wrong, and making each other and themselves whole?

The young man would likely take responsibility for his actions, and attempt to make it up to his victims.  He would practice empathy. He could see his own ability to make a positive impact on others and himself.  His self-esteem would gain a boost.

In the process, he becomes a whole person to his victims, who feel less anxious and afraid, having gotten to know the person who harmed them.  They feel more healed by participating in the process, where the offender accepted accountability and tried to help them.  And what’s more, as so often happens in true collaborative justice, the victims and the community step in to support the young man so that he can choose a different path in the future.  If the beginnings of a mental illness are discovered, the community may pitch in with support: financial or services, to help him and his family manage the illness.

Put aside our needs to condemn and to blame.  Replace it with empathy and with accountability by all, and amazingly, we are likely to see a lot less crime.

The presence of so many people with mental health problems in the criminal justice system shows us how wasteful and immoral is our individualistic, punishment-oriented approach.

We cannot expect our government to take care of our people if we, ourselves, do not want to be bothered, want to go our merry way, want to turn a blind eye.  It’s time that we, as communities, stepped in and held ourselves accountable.

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