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opinion

The Harper government has been flailed, assailed and pummelled over its law-and-order, get-tough-on-crime agenda. It has been accused of ignoring empirical evidence of declining crime rates, indulging in the politics of fear and pursuing bad, unjust and mistaken policies modelled on those of the United States.

There are three things to be said about this consensus of the commentariat. First, the government has been utterly unmoved by all the commotion. Second, the public appears to be unconvinced by the received wisdom of various experts and pundits. And third, the government and the public have sensed deficiencies in our criminal law and the administration of criminal justice - and rightly judged that fixes are needed.

Start with mandatory minimum sentences. Mandatory minimums have been part of our justice system for a long time and not just for the serious offence of murder. Any motorist who blows more than 0.08 on a Breathalyzer will automatically be charged with driving under the influence and will have zero wiggle room when standing in front of a judge. That person will be convicted and will face heavy sanctions, including loss of driving privileges, a fine and steep increases in insurance premiums.

By comparison, someone charged with possessing, carrying or using an illegal firearm has not had, until now, to bear the brunt of mandatory minimum penalties. A plea bargain could involve pleading guilty to lesser offences provided the Crown dropped the weapons charges, and the presiding judge had plenty of discretion when passing sentence.

The drunk driver and the gun-toting thug are both guilty of reckless and dangerous conduct, but, in most cases, there's one essential difference between the two. Most of those convicted of impaired driving are people of good character who made a bad decision - that is, they got behind the wheel after drinking too much. Those who carry illegal firearms or use them in the commission of a crime are generally people of bad character and ill intent. So why would the criminal justice system treat people of good character more harshly than those of bad character?

Then there's the administrative practice known as two-for-one sentencing. Hitherto, judges have been able to give a convicted individual two days credit for each day spent in a municipal detention centre awaiting trial. This practice offends common sense and the norms the rest of us live by. The hard-working, tax-paying citizen doesn't get two days vacation for every day worked. Nor do banks or other financial institutions reward the thrifty with $2 interest for every dollar saved.

There are other two other problems with this two-for-one business. First, it creates an enormous incentive to delay criminal proceedings, which can only add to the congestion in our already clogged court system. Experts may deny that this occurs, but you only need to do the math to understand why it would encourage malingering.

Suppose that two accused individuals are each facing 60-month sentences - which, in practice, means serving 40 months because inmates are routinely released after serving two-thirds of their sentences unless Correctional Service Canada can persuade the National Parole Board to keep them behind bars.

One accused decides to face the music and get on with his life. He spends six months in the local jail before being convicted. He gets credit for 12, so can expect to serve 28 months in a federal penitentiary - or a total of 34 months. The second accused decides to game the system, and spends 18 months in custody. He gets credit for 36 months and can count on serving only four months in the pen. His total time served amounts to 22 months - 14 months less than the guy who played it straight.

This illustrates a second and equally serious problem with two-for-one credits. The accused who sits in a local jail is doing nothing to address the underlying behavioural, attitudinal or personal problems that got him into trouble. He will receive no counselling and won't be required to participate in any programs aimed at addressing his issues. He will serve his brief stint behind bars and come out as bad as he was when he went in.

The guy who accepts his punishment and goes to prison can participate in programs aimed at dealing with such issues as addiction, anger management or domestic violence. There's no guarantee the program will work, but there's at least the possibility of rehabilitating the offender.

The changes the Harper government has introduced - more mandatory minimum sentences and abolishing the two-for-one credits - will mean that more people will serve longer terms in federal penitentiaries. This will cost money. And it has greatly upset the experts. But it's time our courts stopped erring on the side of criminals, and giving offence to common sense.

D'Arcy Jenish, a freelance writer, is the author of seven books, including The Montreal Canadiens: 100 Years of Glory .