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opinion

Allan Manson is a professor in the Faculty of Law at Queen's University

Within six weeks, the federal government has floated three or four proposals to make sentencing for first degree murder harsher. Now they are back to "life without parole" for some categories.

With an election looming, this is political opportunism of the crassest sort. For decades, Canada was respected internationally for its thoughtful and consultative criminal justice policy-making processes. Now we make criminal justice policy on the run, complete with empty and unsupported assertions that Canadians want this.

When announcing this move, Prime Minister Stephen Harper said that Canadians ask why people convicted of heinous murders are ever eligible for release. There was a time when our political leaders would have answered this question substantively, rather than using it as a trigger for a politically motivated strategy.

The answers to the question are threefold. First, our current release scheme is managed by the Parole Board of Canada. Given its risk-focused mandate, it has not been manipulated by the likes of Clifford Olsen and others. Secondly, Canada has strong core values, including respect for human dignity, the prospect of redemption and, at least in theory, the rehabilitative ideal. Thirdly, 25 years is a very long minimum and incapacitation period. There is no evidence that it is inadequate for all the relevant purposes of sentencing, and public protection in particular.

The current scheme was enacted by Parliament in 1976, as part of the abolition of capital punishment. Since then, the murder rate has been consistently falling. Data at that time suggested a minimum term of between 10 and 15 years. The Canadian Association of Police Chiefs approached Warren Allmand, the minister responsible for the new statute, arguing that if abolition happened, the minimum incarceration period should be 25 years. Hence the current scheme, but with the safety valve of a review of parole ineligibility after 15 years. This was repealed by the Conservative government in 2011.

The new proposal would, for many examples of first degree murder, stipulate a life sentence with no parole eligibility, but would permit an application after 35 years to the Minister of Public Safety for release in "exceptional circumstances". At the moment, there is no additional explanation beyond this phrase. However, Justice Minister Peter MacKay used the example of a terminal illness during a television interview.

The government is correct in saying that other countries have life without parole. What it does not mention is that there is a growing number of judicial decisions which have found the practise tantamount to torture. The European Court of Human Rights has found that the sentence violates the guarantee against torture and inhuman or degrading treatment. The German Constitutional Court has found that the sentence offends the fundamental constitutional guarantee of human dignity. The International Criminal Court, with jurisdiction over war crimes, genocide and crimes against humanity can impose life sentences but they must be reviewed by the court after 25 years.

The Supreme Court of Canada will look to these examples to determine whether the government's proposal offends the Charter guarantee against cruel and unusual punishment. It will also have before it a body of literature showing the deleterious effects of long-term confinement on the physical and mental health of prisoners. The Court will also ask what valid penological objective is achieved by relegating people to the despair of imprisonment without parole. And rhetoric will not satisfy the court; it will demand evidence. Otherwise, the provision will be found to be arbitrary.

It is a sad day when a major element of our criminal justice system is determined by mean-spirited political strategy and supported mainly by the selective and emotional use of the word "victim." Nationally and internationally, informed people should be shaking their heads in dismay.