Skip to main content

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.

Story continues below advertisement

"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."

Story continues below advertisement

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."

The essence of good justice legislation has long been rooted in methodical research and the dissemination of discussion papers. Policy-makers consult widely with groups that possess special expertise and a stake in the outcome - such as chiefs of police, bar associations and other interest groups.

Another critical source of expertise comes from the Department of Justice itself, where top lawyers scrutinize legislative proposals and provide frank advice on its constitutionality.

But cautious vetting is no longer the norm, says a well-connected Justice Department insider who spoke on condition of anonymity: "They made a lot of campaign promises that were either ill advised or not workable," she said. "Then, when they came into power, they were hell-bent on making them happen.

"I think that what the government fears is its own caucus - although probably less now than in its early years. Very often, there have been instances where very fine Department of Justice legal minds would say: 'You can't do that because the Charter says X or Y.' The answer from the minister would be: 'I can't take that to caucus. We'll just have to barrel ahead.'" Before a piece of proposed legislation goes before Parliament, the Justice Minister signs an "executive certification" attesting that it complies with the Charter of Rights and Freedoms, the official said. Recently, though, some legislation has been pushed through despite stern internal warnings that it would likely violate Charter provisions.

Story continues below advertisement

"The prevailing attitude was: 'We'll sign the certification saying that this is Charter-proof - and let the judiciary fix it later,'" the insider said. "There is a real fix-it-later attitude."

Judge Cole said he believes the shots are actually being called at the uppermost echelons of government. "All of us who know civil servants in this area know that they are not listened to," he said. "It's all about what political gain can be made. There is no room for thoughtful disagreement. Take it or leave it."

Geneviève Breton, communications director for the Justice Department, did not respond to these allegations. However, she cited a positive response to bills such as the elimination of credit for pretrial detention.

"Police associations, victims groups and indeed all provinces and territories expressed their support for this bill," Ms. Breton said. "Our government was elected on a promise to tackle crime, and we continue to fulfill our promises.

"Our approach is meant to be balanced: It respects the rights of the accused, but does not allow their rights to take precedence over victims and community safety."

While the annual cost of police, courts and correctional services is $13-billion, this is just 19 per cent of the cost of crime itself, Ms. Breton said.

Story continues below advertisement

Carolyn Gardner, a victims advocate who has campaigned against early release for violent criminals, said the government bills have a broad base of support. "It sounds cliché, but when it comes to legislation, I believe there are two ways it can be approached - there's the 'book smart' approach based on ivory tower studies and there's the 'street smart' approach based on reality," Ms. Gardner said.

"We need to feel safe in our communities so the government has to be tough on crime," she said. "Experimenting with research regarding the success of optimistic legislation like the faint-hope clause et cetera shouldn't be at the expense of putting innocent people's lives at risk."

COMING UP: A GLUT OF TRIALS AND SPIRALLING COSTS

Some of the most polarized public debate that has taken place surrounded a series of mandatory minimum sentences and the two-for-one pretrial credit bill.

Among those who appeared at House of Commons and Senate hearings was the president of the Canadian Association of Crown Counsel, Jamie Chaffe, who warned that the new provisions will lead to a glut of trials and increased costs for inmates with longer prison terms.

He cautioned that the overworked justice system would also require substantially more money to beef up prosecution services, legal-aid funding, probation, parole and corrections, and the number of judges available to hear the flow of cases.

Story continues below advertisement

Mr. Gottardi, who appeared at the committees on behalf of the CBA, recalled that the steady flow of criticism of the proposals seemed superfluous once Mr. Nicholson rose to make his own presentation.

"The information presented by the minister wasn't supported by statistics or reports by the Department of Justice, as it would have been in the past," he said. "The message that the senators were getting from him - and from all these other stakeholders - was dramatically different. I don't think the consultation process is nearly as robust or meaningful today as it was five or 10 years ago."

Julian Roberts, a Canadian criminologist who teaches at England's Oxford University, said legislative committees are not even equipped to solve the problems created by ill-prepared legislation, since politicians must concentrate on the specifics of each bill rather than how they fit into the justice mosaic.

Prof. Roberts said Canada has also fallen out of step with other reform-minded nations by twice killing off federal law-reform commissions, leaving a void where there was once a highly regarded template for reform. "That voice is totally absent in Canada, and I think it's regrettable," he said. "I don't think there are many common-law jurisdictions that don't have a law reform commission."

Canada is also notably absent from an international trend toward creating co-ordinated sentencing guidelines to give judges measured guidance. Yet at the same time it is steadily restricting judicial discretion by creating mandatory minimum sentences.

Mandatory minimums in the U.S. have probably had no impact on crime rates. Yet their harsh, one-size-fits-all nature can distort the court process. For example, a prosecutor may be loath to prosecute a marginal case if the suspect was in possession of a gun, which would trigger a mandatory prison term.

Story continues below advertisement

"The Americans have this phenomenon in which the prosecution 'swallows the gun,'" Judge Cole said. "In other words, the prosecutor makes the gun go away so that the judge doesn't hear about it. We are concerned about taking those kind of important decisions away from the public arena and into the private arena."

Judges are skilled at devising creative ways to fight back against laws they believe may skew the system.

For example, Judge Cole said the elimination of two-for-one pretrial credit has prompted judges to begin talking openly about forcing trials to be held more quickly. He said Canadian judges may also start compensating by intentionally lowering sentences.

"That appears to have been the experience in other jurisdictions where Draconian sentencing policies have been forced upon the judiciary."

After all, the consequences of prison overcrowding can be dire. In the United States, correctional systems cannot keep up with expanding populations - California institutions, for instance, are currently operating at twice their intended capacity and have already sent more than 7,000 inmates to Arizona, Tennessee, Mississippi and Oklahoma.

Medical resources within the prisons can't cope with surging demand: A Federal Court judge who was part of a panel set up to look into California's system found that, on average, an inmate in a prison there needlessly dies every six to seven days because of grossly deficient medical care.

Governor Arnold Schwarzenegger even called the state legislature into emergency session in July, 2006, to consider releasing inmates to relieve overcrowding, which had become, "an extreme peril to the safety of persons and property."

Many in the Canadian justice system also have balked at the elimination of the faint-hope clause, since it served a very practical purpose: Offering inmates a real prospect of obtaining early parole meant they were more likely to participate in rehabilitation programs and less likely to engage in prison violence.

"If you take that away, you are going to have people who just sit in their cells," Prof. Manson said. "You are going to have people who are not responsive to the positive parts of the correctional regime.

"If the goal is to do something that reduces crime, none of this legislation is based on sound evidence. It will be costly. And it may get votes, but it won't reduce crime. It is harshness for harshness's sake."

More features of the American scene are almost certain to be on the way. Prof. Roberts said he expects to see the partial privatization of prisons - a move that would probably lead to cutting back programs in order to save money.

He also predicted federal moves to strip any form of creature comfort from the penitentiary system: "The idea is that you make prisons as austere and unpleasant as possible, and people won't want to come back."

And where are the opposition political parties, as this trend continues to take root?

"They have just disappeared into the woods," Prof. Manson said, citing the presentence-custody bill as a prime example.

In the Commons, the Liberals voted for the bill to escape being labelled as soft on crime. When the legislation reached the Senate, three important amendments were added by the majority Liberals. But when it came time for a final vote, so few Liberals turned up that the amendments were defeated.

"The opposition parties are terrified of having someone point a finger at them and say: 'You're soft on crime,'" Prof. Manson said.

"But when a minority government can ram through these bills, there is something wrong. These bills represent a lack of respect for evidence, research and methodology - and a supreme confidence that they know what people want."

Kirk Makin is The Globe and Mail's justice reporter.

Report an error Editorial code of conduct
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.
Comments are closed

We have closed comments on this story for legal reasons or for abuse. For more information on our commenting policies and how our community-based moderation works, please read our Community Guidelines and our Terms and Conditions.

Cannabis pro newsletter