Sen­Sa­tional crimeS make bad law

Chang­ing laws and poli­cies be­cause of shock­ing cases like McClin­tic’s holds back oth­ers who de­serve bet­ter

The London Free Press - - COMMENT - AnitA GrAce Anita Grace is a PhD can­di­date in the depart­ment of law and le­gal stud­ies at Car­leton Univer­sity.

The trans­fer of con­victed mur­derer Terri-Lynne McClin­tic to an Indige­nous cor­rec­tional fa­cil­ity has re­sulted in changes to cor­rec­tional leg­is­la­tion and prac­tice. But cre­at­ing law and chang­ing pol­icy in re­sponse to one sen­sa­tional case has an im­pact far be­yond the in­tended tar­get.

Just look at what hap­pened when Karla Ho­molka, one of Canada’s most in­fa­mous killers, com­pleted her 12-year man­slaugh­ter sen­tence.

A rally against McClin­tic’s trans­fer to an Indige­nous heal­ing lodge on Par­lia­ment Hill on Nov. 2 fea­tured calls of “send her back” and “life means life” in ref­er­ence to her sen­tence. McClin­tic was con­victed of first-de­gree mur­der in 2012 for the ab­duc­tion, rape and mur­der of eight-year-old Tori Stafford in Wood­stock.

McClin­tic’s crime has dis­turb­ing sim­i­lar­i­ties to Ho­molka’s. In 1993, Ho­molka was con­victed of man­slaugh­ter in the ab­duc­tion, rape and mur­ders of Kris­ten French and Leslie Ma­haffy. Both Ho­molka and McClin­tic acted along­side male partners and were tar­gets of ex­ten­sive me­dia cov­er­age.

Ho­molka served 12 years in prison and was re­leased in 2005. In 2010 she be­came el­i­gi­ble to seek a par­don, al­though there was no in­di­ca­tion she was go­ing to ap­ply.

Since 2012, McClin­tic had been in­car­cer­ated in On­tario’s Grand Val­ley In­sti­tu­tion for Women. She was trans­ferred last year to Oki­maw Ohci Heal­ing Lodge in Saskatchewan, a multi-se­cu­rity fa­cil­ity pri­mar­ily for Indige­nous fe­male of­fend­ers, but amid the up­roar this fall af­ter the pub­lic learned of her trans­fer, she was moved to a medium-se­cu­rity prison in Ed­mon­ton and then re­turned to Grand Val­ley.

There was no in­di­ca­tion her trans­fer to the heal­ing lodge, it­self a prison, posed a se­cu­rity threat or vi­o­lated cor­rec­tional pro­to­cols. Nonethe­less, her case, like Ho­molka’s, has re­sulted in changes to fed­eral poli­cies and laws.

Child mur­der and ag­gra­vated sex­ual as­sault are a small mi­nor­ity of crimes com­mit­ted in Canada, and 97 per cent of those ac­cused of sex­ual as­sault are male. So it’s not sur­pris­ing that women like Ho­molka and McClin­tic are viewed with ex­treme pub­lic re­pu­di­a­tion. But us­ing their rare and sen­sa­tional crimes to change pol­icy makes for bad leg­is­la­tion.

In re­sponse to Ho­molka’s pos­si­ble par­don ap­pli­ca­tion, laws were changed. The time pe­riod be­fore which those con­victed of in­dictable of­fences could ap­ply for par­dons af­ter com­plet­ing their sen­tences was ex­tended from five to 10 years. For less se­ri­ous of­fences, the pe­riod moved from three to five years. The cost was quadru­pled, from $150 to $631.

Ap­prox­i­mately 3.8 mil­lion Cana­di­ans have crim­i­nal records. Since the laws changed, those ap­ply­ing to have their records sus­pended dropped to 12,384 in 2015-16 from 29,849 in 2011-12, the year of leg­isla­tive changes.

The changes, which were ap­plied retroac­tively, have been found to vi­o­late peo­ple’s Char­ter rights. They have also been costly to the pub­lic.

With­out a record sus­pen­sion, those with crim­i­nal records are of­ten un­able to find work, es­pe­cially work that pays a liv­ing wage. They are more likely to rely on so­cial sup­ports, rather than con­tribut­ing to the econ­omy and pay­ing taxes.

Yet crim­i­nol­ogy pro­fes­sor An­thony Doob ar­gued in a 2017 le­gal chal­lenge that only four per cent of par­dons in Canada have been re­voked. This means 96 per cent of those who have re­ceived a par­don live crime-free lives.

When the Con­ser­va­tives changed the leg­is­la­tion, they also re­placed term “par­don” with “record sus­pen­sion.”

“It’s not the state’s busi­ness to be in the for­give­ness busi­ness,” then minister of pub­lic safety Vic Toews de­clared. Such state­ments il­lus­trate the ex­tent to which changes to the sys­tem were po­lit­i­cally driven.

Com­ments from cur­rent Pub­lic Safety Minister Ralph Goodale have been more mea­sured, but he or­dered Cor­rec­tions Canada to tighten trans­fer poli­cies. The changes im­pact all ex­ist­ing and fu­ture cases of in­mates seek­ing trans­fers.

Trans­fers be­tween pris­ons have long been mat­ters of ex­ten­sive pol­icy and eval­u­a­tion of in­di­vid­ual of­fend­ers. Of­ten trans­fers are done to pro­vide in­mates with ac­cess to re­ha­bil­i­ta­tion pro­grams or to bring them closer to their fam­i­lies and sup­port sys­tems.

Be­tween 2011 and 2019, 22 con­victed child killers have served some of their time in heal­ing lodges. Yet af­ter one sen­sa­tional case, new poli­cies will make it harder for pris­on­ers to move to lower-se­cu­rity fa­cil­i­ties like heal­ing lodges.

“Jus­tice is fi­nally be­ing served as Tori Stafford’s killer is be­ing put back in a prison,” de­clared Con­ser­va­tive Leader An­drew Scheer af­ter McClin­tic’s trans­fer from the heal­ing lodge to a tra­di­tional prison was made known.

Such state­ments fuel pub­lic mis­con­cep­tions about heal­ing lodges, which are still pris­ons. There are guards, strip searches and close sur­veil­lance.

The leg­isla­tive changes made in re­sponse to Ho­molka’s pos­si­ble par­don ap­pli­ca­tion have been harm­ful to thou­sands, and have not demon­stra­bly made the pub­lic any safer.

It’s too soon to tell what the im­pact will be of changes to inmate trans­fers and risk as­sess­ment. But if there are any lessons to be learned from the past, surely it’s that the po­lit­i­cally and emo­tion­ally charged court of pub­lic opin­ion is not the place to make pol­icy changes in ar­eas as com­plex as cor­rec­tions.

GettY iM­AGeS

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