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Five fundamental ways Harper has changed the justice system Add to ...

Stephen Harper set out as Prime Minister in 2006 with the express goal of taking back the Criminal Code from the Liberal Party, and the toughening of crime laws has become a permanent and central feature of his agenda. But how fundamental have those changes been?

The Globe and Mail spoke to law professors, Crown attorneys, defence lawyers, criminologists and victims’ advocates for an answer. The question comes at a time when the Conservative government is taking heat over justice issues, with the Auditor-General’s report on prison overcrowding and the Prime Minister engaging in an unprecedented public battle with Supreme Court Chief Justice Beverley McLachlin.

The consensus is that Mr. Harper has kept his promise: Love it or hate it, he has broken with some long-standing principles and made major changes to how criminals are punished.


(Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, effective Dec. 2, 2011)

Why it’s a fundamental change:

It’s the biggest psychological break with Canada’s recent past. It makes life mean life, or very close to it, in a country that has no death penalty and no penalty of life without parole.

How it works:

For each first-degree murder (planned and deliberate killing), a killer could wait as long as 25 years before a parole hearing. Four murders could bring a parole eligibility period of 100 years.

How it used to work:

In 1976, when Parliament abolished capital punishment, it made a life sentence mandatory for murder, with the first parole hearing after 25 years for one or more first-degree murders. There was also a “faint-hope clause” – after 15 years, a killer could ask a jury for an early parole hearing. Canada was similar to England and Wales, where mandatory lifers – murderers – serve an average of 16 years before release.

The Conservatives abolished the faint-hope clause, saying it increased the suffering of the families of victims. Then they borrowed from the United States, which has “life without parole” in 49 states (all except Alaska). Of 140,000 inmates serving life sentences in the United States, 40,000 are serving life without a possibility of parole, a Canadian government briefing paper says.

This measure could be a stepping stone to some day raising the 25-year parole eligibility in especially brutal single killings, now that the psychological barrier of 25 years has been breached.

The first case:

Last summer, Travis Baumgartner, a 21-year-old armoured-car employee in Edmonton, pleaded guilty to killing three coworkers in a heist, and his lawyer accepted a plea deal of 40 years’ parole eligibility – the harshest sentence since the last death penalty case in 1962. He will be eligible for parole at age 61.


The major impact will be felt by the families of victims, who won’t need to attend nearly as many (or perhaps any) parole hearings, says Steve Sullivan, head of Ottawa Victim Services.

Sue O’Sullivan, federal Ombudsman for Crime Victims, say the provision is important in holding offenders accountable for each life taken. It may therefore build public confidence in the justice system.

Symbolic impact:

“The Criminal Code is like a pyramid,” says Gary Clewley, a former Crown attorney who often represents police officers in court. “It’s important what happens at the top. It’s important that the most serious offences are treated in the most serious fashion. That sets a standard for everything else.”


(Safe Streets and Communities Act, which received royal assent on March 3, 2012, and other laws)

Why it’s a fundamental change:

It’s critical to making Canada more of an incarcerating nation. It’s also critical to reducing the power of judges over sentencing, and asserting Parliament’s views on fit sentences.

How it works:

Canada has long had mandatory minimums, but under the Conservative government they have become near-ubiquitous in drug offences, sexual crimes against children and gun crimes. Growing six marijuana plants brings at least six months in jail (there was no minimum before). Possession of child pornography has a six-month minimum (up from 45 days established by the Liberals in 2005). Illegal possession of a loaded handgun (or with ammunition nearby) brings at least three years on a first offence, five years on a second one.


There may be some deterrence. Some justice officials say word is out among criminals that carrying a gun on the street means three years in jail. (Academic studies suggest mandatory minimums are ineffective deterrents; Mr. Clewley, the former Crown attorney, says studies can’t show what crimes people would have committed but for a tough law.)

There are more trials, as people try to avoid an automatic jail sentence. That means more burdens on the courts, Crowns and legal aid, which haven’t added enough infrastructure to keep up, justice officials say. New mandatory minimum sentences also mean more prisoners, and greater costs for the corrections system. In the U.S., mandatory minimums, especially for drug crimes, fuelled that country’s surge to its status as the world’s leader in incarceration.

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