Tag Archives: prisons

Canada Doesn’t Need to Fix Its Justice System: It Needs a New One

This article was published in the Huffington Post on May 1, 2017

How do you reform Canada’s criminal justice system? Canadian Justice Minister Jody Wilson-Raybould and her provincial and territorial counterparts held an urgent meeting on April 28 to discuss “priority responses to further reduce delays in the criminal justice system.”

There was scant information available to the public about the meeting. It appears, however, that there was no agreement on any substantive solutions. All we know is that several key areas face some kind of revision. Mandatory minimums, the bail process, the reclassification of offences and the administration of justice all seem to be on the table. Sadly, the reckless elimination of preliminary inquiries is also still an option.

The ministers have gone so far, it seems, to label their efforts as “transformational” — at least that is how their objectives are described in the Canadian Intergovernmental Secretariat News Release.

Indeed, depending on what is proposed, many of the prospective changes are necessary.

Necessary, but ultimately inadequate. Necessary but insufficient in resolving the inefficiency, the delays and the inhumanity of our criminal justice system. Necessary, but not “transformational.”

That is because what our criminal justice system needs is not mere fixes that further entrench the status quo and the adversarial, punishment-oriented and individualistic process we have now, but true transformational change. We need transformational change that will not only dramatically reduce delays and backlogs in our criminal justice system, but will revolutionize it to make it more meaningful to both victims and offenders.

The most imperative of these transformative options is the mainstream implementation of restorative justice. Restorative justice is a process that brings together (in appropriate cases) the offender, the victim and their supporters with highly trained and professional facilitators for one or more meetings, usually conducted in a circle. During these encounters, the victims tell their story, describe how the offence impacted them and seek answers from the offender. In turn, the offender listens, and relates his or her own story. The focus is on “why” rather than on “who,” and on healing rather than on punishment. The group often works together to find a resolution, not a punishment.

By and large, restorative justice works. There is plenty of proof, including in Public Safety Canada’s own records, that restorative justice is a better alternative to our system. It helps victims recover more quickly from post-traumatic stress disorder. It sometimes results in collaboration between the offender, the victim and the connected community to assist both the offender and the victim move forward. It holds offenders accountable and gives them a better chance at moving in a more positive direction.

And restorative justice seems to reduce recidivism. This is all in stark contrast to the impact of our current criminal justice system: costly, dehumanizing and generally ineffectual in rehabilitation, reintegration, and in reducing recidivism.

Rather than have accused persons (and victims) go through a harsh, degrading and impersonal court process and face a punitive, overly individualistic response, we should bring both willing accused and willing victims into the restorative justice process at the earliest possible stage. We should replace our adversarial, punishment-oriented system with restorative justice — and not simply at the sentencing stage, which is where the dearth of our restorative justice activity lies now.

While replacing our court process with a restorative process would be transformative and revolutionary for our western notion of justice, restorative justice, itself, is not revolutionary. It has its roots in many Indigenous communities. It has been tried, in one form or another, in other jurisdictions, from England to New Zealand (where restorative justice has replaced the adversarial system for youth since 1989), and on a smaller, more timid scale across various parts of Canada, as a part of the sentencing process.

Other solutions, such as reducing the number of charges laid and the number of cases that wind their way through the courts, eliminating solitary confinement, and keeping the mentally ill out of the criminal justice system are essential and will also significantly make the criminal justice system more just, more efficient and less costly. Yet none of these appear to have formed part of the discussion of our ministers of justice last Friday. Ultimately, no other “fix” will be as transformational as restorative justice.

Restorative justice is such a meaningful response to our criminal justice woes that any other solution pales in comparison. More judges, more Crown attorneys, eliminating preliminary inquiries… they are all diversions. They are Band-Aid solutions implemented when we (and our elected officials in particular) lack the will to confront the foundational challenges to our notion of justice and the courage to implement transformational change.

Our ministers of justice will be looking for fixes to our broken justice system. Instead, they should focus on creating a new one. A truly just justice system.

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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

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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Filed under collaborative justice, criminal justice, jails, Prisons, Restorative justice, Uncategorized, Victim offender reconciliation