Harper handcuffed over ‘tough-on-crime’ stance
Justice reforms: PM’s populist approach has yielded little
In his year-end TV interview with the prime minister, CBC anchor Peter Mansbridge asked Stephen Harper how Canada has changed in the nine years that he’s been running it.
Harper pointed to the economy — balanced budgets, lower taxes, economic growth — contrasting his record with previous government and the records of other countries.
There is partisan exaggeration here — Jean Chretien and Paul Martin managed our economy well enough — but Harper’s argument that he has been a good steward is fairly strong.
He walked onto thinner ice when he turned to his crimefighting agenda.
“We have crime rates falling,” he said. “We’ve put emphasis on a different kind of criminal justice that protects victims and protects law-abiding citizens and properly punishes criminals. That’s something the Canadian public has supported. I think ... the proof points of that, not just in terms of popularity but in terms of results, are clear.” This is not very convincing. After nine years in office, the Conservatives have mostly failed to remake our justice system, having been repeatedly blocked by the courts. To the extent that they have succeeded in making changes, it’s unclear that those changes have made us safer.
It feels good to “get tough” on criminals, to impose longer sentences and make life in prison less pleasant for offenders, but imprisoning people is incredibly expensive.
It cost $117,788 per federal prisoner in 2011-12. We spent $2.7 billion on federal penitentiaries in 2013, up $1.1 billion from a decade earlier.
The prison population has increased to 15,000 from 12,000 10 years ago, while crime has been falling.
There is no reason to believe that the increase in incarceration had anything to do with the decline in the crime rate.
Demographics — specifically, the number of men between the ages of 15 and 24 — has the biggest impact on the crime rate. The prime minister can’t really take credit for the aging of the baby boom echo generation.
It’s likely that his policies — more incarceration — have made us less safe, since prison often makes criminals worse, not better.
We can’t afford to lock up every criminal for the rest of their lives, and since they are going to get out eventually, we’re better off thinking hard about how the experience of being locked up with a bunch of other criminals is going to affect them. That’s one of the reasons why community sentences — supervised house arrest — is better than prison in most cases.
But the public lacks confidence in community sentences. Crime rates are falling, but our fear of crime persists.
The Conservatives nurture that fear, exploiting it carefully for political gain, trumpeting their toughness, accusing their opponents of being “soft on crime,” using it to motivate supporters to vote and donate.
It’s wedge politics, obviously influenced by techniques honed by Republicans in countless American elections.
You can tell that the message works by watching Canadian opposition politicians sidestep parliamentary battles over the Harper government’s crime bills.
But judges, who do not have to worry about getting elected, have repeatedly overturned Harper’s “tough- on- crime” laws, ruling that they violate the Charter of Rights of Freedoms, blunting the actual impact of Harper’s changes.
In 2014, judges at all levels shot holes in Tory laws, a delayed reaction to years of dimwitted populist law-making.
The Supreme Court, which ended 2014 by overturning Canada’s prostitution laws, in March overturned a Conservative bill that retroactively changed parole eligibility.
In April, the court rejected a law that capped the amount of credit prisoners could receive for time spent in pre- trial custody.
In June, the court ruled that Internet service providers had to stop routinely handing subscriber data to police.
In July, it imposed new rules on police use of “Mr. Big” stings.
In each decision, the court ruled against the government and in favour of more liberal interpretations of the charter.
Only in December’s cellphone decision — which allows police to search the phones of suspects — did the court side with the government.
If Harper loses the election this fall, and is replaced by Liberals and/or New Democrats, his legacy in the criminal justice system will be pretty small and, likely, swiftly reversed. The real story is how little impact he has had — in spite of a decade of law-making — and how the charter continues to be a force for change, no matter who is in power.
This may be a result of a deeper Canadian caution underneath an American veneer of vengeful populism. Perhaps Harper’s team knows that it’s unwise to get too “tough.”
If he really wanted to remake the justice system, he could invoke the notwithstanding clause, which allows Parliament to overrule the judges in charter decisions.
But Harper seems to know that he can’t win a public relations battle against the bench.
He tried that in the spring, when he stumbled into a battle with Chief Justice Beverley McLachlin over the bungled Marc Nadon appointment.
The fact that Harper retreated hurriedly from that showdown suggests that he knows he can’t take on the judges, and he has no choice but to let them have the final say.