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An April 2012 file photo shows a guard walking along a catwalk at Kingston Penitentiary in Kingston, Ont. (Kevin Van Paassen/The Globe and Mail/Kevin Van Paassen/The Globe and Mail)
An April 2012 file photo shows a guard walking along a catwalk at Kingston Penitentiary in Kingston, Ont. (Kevin Van Paassen/The Globe and Mail/Kevin Van Paassen/The Globe and Mail)

GREENSPAN and DOOB

Harper’s ‘tough on crime’ is all torque Add to ...

During five years in minority government, Stephen Harper’s Conservatives introduced 61 crime bills. In doing so, they successfully portrayed themselves as favouring harsh treatment for offenders. If “being tough” were all there was to criminal punishment, they would have been successful. But it isn’t that simple.

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Most Canadians believe what the law has said for years: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” But ensuring that this happens is not easy. In 2010, the Alberta Court of Appeal noted that judges sentencing identical cases would often hand down different sentences. When prison sentences are imposed, the portion of the time that is actually served in prison is not completely predictable. Many people think offenders will routinely be released on parole, although that isn’t the case.

Sentencing and release from prison, two parts of our punishment system, deserve thoughtful attention. Fixing the problems that exist in each will not be easy. But the Conservatives have systematically avoided addressing the difficult and real problems facing the criminal justice system.

They recently announced that in 2013, they will employ the same tool that they have used since 2006 – a torque wrench – to “fix” another part of the criminal justice system. Their new fodder is the mentally ill. The government will tighten up sections of law that relate to those who are found not criminally responsible on account of mental disorder.

One of the so-called fixes is just silly redundant rhetoric. The Minister of Justice has said he will make the safety of the public the “paramount consideration in the decision-making process involving mentally disordered accused persons.” Yet his own ministry’s website concedes that the Supreme Court has already made clear that the “protection of society” is “paramount” in these cases.

To make it look as if we will be safer from the mentally ill, they have searched and found something that they can tighten. Those deemed by juries or judges to be not criminally responsible because of mental illness are held in secure mental hospitals. A board, containing experts and receiving advice from a provincial Crown attorney, hears all relevant evidence. If they decide that the patient no longer poses a serious threat to society, they can release him.

Hearings now typically take place annually. So Mr. Harper’s minister is recommending that reviews take place only every three years. It doesn’t matter that it is in the public interest to release people when they can be safely released – not before, and not years after. It doesn’t matter that the hospitals are full and that the costs of detaining these patients mean that services are not available for others who need them. Nor does it matter whether the patient has been successfully treated.

Piecemeal “tightening” of provisions is all the government can do. Since 2006, the Conservatives have made scores of these changes, each adding incoherence to an already complex and somewhat incoherent system.

For example, rather than consulting, considering and discussing with all interested parties how to ensure the effective reintegration into society of offenders sentenced to prison, the government simply abolished “accelerated parole review,” which allowed non-violent offenders serving their first penitentiary sentences to be fast-tracked for parole consideration. Instead of making sense of the complex and confusing ways in which offenders sent to prison serve their sentences, the government took the easy way out. They realized that they could score just as many political points simply by eliminating this provision. Truly fixing the problems would take consultation, thought and hard work. Apparently, that’s not the Conservative way when it comes to criminal justice.

Last year, the Conservatives introduced legislation to double and make mandatory victim surcharges – fines, essentially – on offenders, many of whom have no money to meet these new penalties. Does the government care that imposing a fine that can’t be paid makes no sense?

So, in 2013, unless Santa brought the Prime Minister a new tool, the same old torque wrench will be attached to other criminal justice provisions. Few people would go to a car mechanic whose only skill was using a torque wrench. But that is what Mr. Harper is doing with our criminal justice system.

A criminal justice system that incarcerates a higher proportion of Canadians than it did in the past is not necessarily a better system, nor is the country safer because of it. When crime – including homicide – has been decreasing for more than 20 years, “tightening up” the system and forcing the provincial and federal governments to allocate more resources to lock up more Canadians is counterproductive. Canadians deserve more from a Prime Minister who claims to be committed to getting value for money.

Edward Greenspan is a Toronto criminal lawyer. Anthony Doob is a professor of criminology at the University of Toronto.

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