Anthony N. Doob is professor emeritus of criminology, University of Toronto.
Canada's criminal justice system faces many challenges. For example, provincial prisons contain more people who are legally innocent while awaiting trial than it does offenders who are serving prison sentences. Our sentencing structures are becoming more and more incoherent with each passing bill, such that it is becoming increasingly impossible for judges to follow a simple and almost universally accepted principle: that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.
We face other challenges – economic and international ones, for example. But instead of addressing these difficult problems, Prime Minister Stephen Harper's government has picked an easy target. The Conservatives are promising to create a new sentence of "life without parole" for certain categories of people found guilty of first-degree murder. The question is "Why?"
As Globe and Mail justice reporter Sean Fine pointed out this week, it's not because of crime – the homicide rate has been decreasing for decades. Contrary to recent statements by Mr. Harper, the decreases have nothing whatsoever to do with his crime policies. And the life-without-parole proposal has nothing to do with current sentencing laws. First-degree murderers get automatic life sentences. Even if paroled – after a minimum of 25 years – they are supervised for life.
Canada's parole boards are already tough on offenders. If all parole boards stopped granting full parole to those serving sentences other than life, the prison population would increase by just 2.7 per cent. And offenders on parole commit very few offences. About 150,000 adults a year are charged with violent offences, but just 16 federal parolees are convicted of such offences each year.
The government's view is that some murderers should never be released, and most people would probably agree. The question is when that decision should be made: right after someone is convicted, or decades later, when the parole board can see whether they have changed and whether the public interest is served by releasing them?
The Harper government opposes policies based on the assumption that people can change. A different view was expressed recently by the European Court of Human Rights, which argued that those "who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, some day, they may have atoned for the wrongs which they have committed."
We also have feedback from ordinary Canadians who have examined carefully whether murderers should be released.
Until 2011, those who committed murder benefited from what was popularly known as the "faint hope clause." Instituted when capital punishment was abolished, the idea was that with parole ineligibility periods of up to 25 years, prisoners serving life sentence should have a "faint hope" of earlier release. After serving 15 years in prison, an inmate who was not yet eligible for parole could ask for a court hearing before a 12-person jury to try to persuade them to award an earlier parole eligibility date. If successful, the offender would still have to convince the parole board that release was appropriate.
Under that system, 77 per cent of first-degree murderers and 87 per cent of second-degree murderers were successful in convincing a jury that they should have a chance at earlier release. Before 1997, at least two-thirds had to vote in favour; after 1997, juries had to be unanimous. The success rate was essentially unaffected by this change.
They're not easy marks – like the parole board, they easily turn down the worst cases. After hearing four days of evidence, the jury in Clifford Olson's 1997 faint-hope hearing took just 15 minutes to reject his application. But jurors apparently want to give first-degree murderers a chance at parole if they can demonstrate that they've changed.
The evidence is clear: Canadians who look at actual cases often recognize that after 15 or more years, some people who have done terrible things have changed and should be allowed back into our communities under various controls. There is no rational evidence of a need to create a sentence of life without parole. The government is trying to address some other need.