How the Conservatives changed crime policy
Prison terms are longer and punishments more severe — at a time when crime is in decline, write Lisa Kerr and Anthony N. Doob.
Before the Conservatives formed government in 2006, Canada had a long tradition of allowing criminal justice experts — like judges and prosecutors — to make decisions in ways that were largely insulated from politics. This tone of moderation in crime policy has changed. With the Conservative politicization of the field of criminal justice we have seen an uptick in rates of imprisonment, an increase in the severity of the punishment experience, and, perhaps most striking, a new reliance on crime as a salient topic with which to mobilize political support.
One can identify at least three categories of Conservative activity in this policy domain. The first category is the Conservative party’s attempt to gain popular support by signalling that it is tough on crime through superficial or rhetorical moves that change little on the ground. For example, the Conservatives passed laws telling sentencing judges to consider things like the age of a crime victim, despite the fact that judges already had broad authority to consider the circumstances of an offence when selecting a fit sentence. Some of the talk is just talk.
A second category of Conservative activity has generated consequential policy measures that will be difficult to unwind. The Abolition of Accelerated Parole Act, for example, rescinded a program designed to get nonviolent first-time penitentiary prisoners out of federal prisons and into more productive forms of community supervision. The vast majority of prisoners released under this program successfully completed parole with no new offences of any kind. The Supreme Court of Canada struck down a particularly draconian provision that made the act retroactive, but the wisdom of the legislation was otherwise unreviewable and remains in force. It’s unlikely that restoring this sensible program will be high on the agenda of any new government.
Similarly, the Conservatives abolished the so-called “faint hope clause” whereby a subset of those serving life sentences for murder could appear before a jury of 12 ordinary citizens to ask for their parole ineligibility period to be reduced. The bar for obtaining release was high. If the jury unanimously recommended that the prisoner be allowed to apply for parole earlier than the time originally set, the prisoner still had to convince the parole board that release was warranted. Since the first hearing in 1987, an average of about five prisoners a year had been released under this provision. This program gave prisoners on long sentences reason to hope and reason to engage productively in prison life.
A final example under this category is how the Conservatives have extended the stigma of punishment, even where individuals have successfully done their time. Since 1970, Canadians who had been convicted of crimes could, three to five years after the completion of their sentences, apply for pardons. If they had lived peaceful, crime-free lives, they were generally granted pardons. They would lose their pardon if there was evidence that they had offended again. Ninetysix per cent of all pardons granted are still in force. However, the Conservatives changed the name of the process (from “pardon” to “record suspension”), raised the application cost from $50 to $631, increased the waiting time to 5 to 10 years after the completion of their sentences, eliminated the possibility of obtaining a pardon for some offenders, and, remarkably, allowed the Parole Board of Canada to suspend indefinitely the processing of applications from people who legally were entitled to pardons and had applied before the laws changed.
A third category of Conservative activity also represents real change, though it may be shortlived. Mandatory minimum sentences for certain drug offences, for example, are likely to be found unconstitutional. In 1987, the Supreme Court of Canada struck down the only mandatory sentence for drug crime in our history, and subsequent governments did not try to re-legislate. The new Conservative sanctions will either be undone or significantly ameliorated by prosecutors and judges. In this category, our biggest concern might be that the Conservatives have a tendency to waste legislative time and drain litigation budgets in their criminal justice efforts.
What ties these activities together is the widely-noted peculiarity of a desire to reform the criminal justice system — or at least talk about reforming it — at a time when crime is in a longstanding state of decline. Total crime in Canada peaked in the early 1990s and declined thereafter. Homicide rates peaked in 1977 at three per 100,000 residents. In 2014, the rate was 1.46 homicide victims per 100,000 residents. These patterns fit a larger story of peak and decline that has occurred in the United States and many other industrialized democracies. For well over a decade, Canada has been enjoying the same drop in crime as similarly situated nations. The causes of the drop in crime are not well understood. What is known for certain, however, is that the drop in crime in Canada has little to do with criminal justice punishment policies. Indeed, Canada’s imprisonment rate was remarkably consistent in the decades before crime fell.
On these facts it would be unreasonable to hypothesize that moderation in criminal justice policy — or the Conservative punitive criminal justice policies — have much to do with crime rates. Conservative party members have taken curious positions on the crime decline. At times, they attempt to take credit for the crime drop — in 2014 Harper said that “on our watch, the crime rate is finally moving in the right direction; the crime rate is finally moving down in this country.” At other times, they try to emphasize that crime persists — that “only reported crime is down.” The reduction in crime is, however, real, with overall rates declining since the 1990s, and it clearly flows from factors that predate Conservative rule.
The Conservative approach contains a good deal of bluster, but more importantly, the Conservative approach represents an attempt to dramatically shift Canadian values. In the past, Canadian governments and policies reflected the view that those who committed offences needed to be held accountable (or punished) for their deeds, and then reintegrated into Canadian society. In the Harper Decade, our collective voice of reason and moderation in criminal justice, which has served us reasonably well in the past, has faded from the Parliament of Canada.
The Conservative approach represents an attempt to dramatically shift Canadian values.