Tough, uncompromising and characteristically in high dudgeon, federal Justice Minister Rob Nicholson makes a powerful salesman for a government sworn to stop mollycoddling criminals.
At parliamentary committees, press conferences and media scrums, Mr. Nicholson pounds a steady drumbeat for the merits of ever-more-punitive laws, for which he cites overwhelming public support. He adds planks weekly to the Conservative tough-on-crime agenda. He has made headlines by de-fanging the country's gun registry and expanding the powers of the police to root out child pornographers.
Less visible are his efforts to toughen sentencing and reduce judicial discretion.
“Canadians have been telling us that this is what they want to see,” Mr. Nicholson said recently, in defence of a bill to prevent inmates from getting shortened sentences when they have been incarcerated before their trials (usually in cramped, unpleasant holding centres). “The process that we've had over the past 20 years is unacceptable to the vast majority of Canadians, no matter where they live.” But to Eric Gottardi, a Vancouver lawyer representing the Canadian Bar Association, and other legal experts, the flurry of recent legal changes amounts to “signposts of the Americanization of our justice system.”
And if Canada continues down this path, he and other legal experts worry that this country could end up sharing the problems that plague the U.S. legal system, where judges are hamstrung by sentencing guidelines and prisons burst at the seams.
In recent months, the federal legislative changes led by Mr. Nicholson include: Eliminating the “faint-hope” clause that allows people convicted of first-degree murder to seek a jury recommendation for early parole at the 15-year mark of their life sentences. Restricting the range of offences for which conditional sentences, such as house arrest or community service, can be imposed by judges. Eliminating two-for-one credit for time served in pretrial custody. Compounding the parole-eligibility period for multiple murderers, making them ineligible for parole for periods such as 50 years. Binding the discretion of judges by attaching mandatory minimum sentences to more and more offences.
The government even embedded a “three-strikes-you're-out” amendment in new dangerous-offender provisions, said Allan Manson, a sentencing expert at Queen's University. “They just jammed it into a carefully tailored provision,” Prof. Manson said. “I think it will end up rendering the dangerous-offender scheme unconstitutional.”
“It concerns us that they are changing the law to respond to perceptions that may or may not be based in fact,” Mr. Gottardi said. “When you start naming your bills ‘the Truth in Sentencing Act' or ‘Serious Time for Serious Crime Act', you are playing into a perception that the system is flawed – that there is untruth in sentencing.”
Anomalously, the changes come at a time when Canadian crime rates have been steadily dropping. While little information is available on whether public attitudes are actually hardening, it would hardly be surprising if political rhetoric has not caused people to fear for their safety, University of Toronto criminologist Anthony Doob said.
“The difficulty is that what the politicians are saying about the ‘safety' impact of these bills is almost always wrong,” Prof. Doob said. “I have no idea whether the politicians are ignorant or dishonest, but the effect is the same.”
It will be years before the jury is in on the full consequences of the Tories' justice experiment. However, one thing seems clear. Their transformation of the justice system has been long on populist rhetoric and short on meticulous research, broad consultation and a careful sifting of potential ramifications.
“You would think that you would want good policy development in the area of criminal justice – particularly in sentencing – but everything is done on the fly, and always with a view to quick political gain,” said Mr. Justice David Cole of the Ontario Court of Justice, a sentencing and parole expert. “All the academics know this. All the commentators know this.”
