SenSational crimeS make bad law
Changing laws and policies because of shocking cases like McClintic’s holds back others who deserve better
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.