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A criminal mind: Justice policy flying under the radar in election campaign

Criminal justice policy hasn’t usually been a ballot-box issue in Canada. Under Liberal and Conservative governments alike, there used to be a broad consensus in favour of an evidence-based, mildly progressive agenda with the details generally left to policy experts from the academy, bar, and judiciary to work out. The punitive turn taken by American legislators in the face of rising crime rates and the crack epidemic in the 1980s largely, although not entirely, passed Canada by.

All of that changed in the past decade. Just as the American incarceration craze started to run out of ideological momentum (and the cash to fund it), the ascendant Conservatives under Stephen Harper fastened onto the tough-on-crime agenda as a way to get votes and a partisan rallying point. Rhetorically, the strategy has hinged on dividing the world into two opposing groups: criminals who deserve severe treatment and everyone else who needs protection from them. This is an ugly gambit and, by and large, the results haven’t been pretty either.

Given that criminal justice has played such a leading role in the government’s mythology, it’s a bit surprising the issue has been largely absent from the election campaign so far. Harper has beat the law-and-order drum periodically on stump, but the subject didn’t arise during any of the English-language leaders’ debates so far, and neither Tom Mulcair nor Justin Trudeau has chosen to emphasize it as a point of contrast with the Conservatives.

That’s a shame because the Conservative record on this issue is a worthy target. As I’ve written here many times before, it has largely been about fear mongering and a disdain for expertise and evidence.

That’s not to say that the resulting legislative product has been uniformly terrible as I can think of exactly two instances in which the Harper government has legislated productively in this area. In the interests of fairness and balance, let me point them out.

First, in 2011, Parliament enacted a number of helpful case-management provisions recommended by the 2008 report on long and complex trials. For example, a pretrial case-management judge can now make binding evidentiary rulings well in advance of trial. This makes practical sense and appears to have had the desired effect of improving trial efficiency in the superior courts.

Second, the government recently legislated a new offence of distributing an intimate image without the subject’s consent. The provision addresses the phenomena of cyber bullying and revenge porn that have often been in the news recently. While I don’t think the criminal law should intervene in most teenage sexting cases, it may well be appropriate to have an offence to deal with extreme instances involving real harm. It’s at least preferable to invoking child pornography offences in circumstances to which they were never meant to apply.

Unfortunately, for every salutary decision, there have been a dozen pointlessly punitive enactments that have done nothing to make people any safer or the system any fairer. The government has brought in longer sentences, less judicial discretion, and fewer opportunities for parole or other forms of rehabilitation. A good example is the life means life act, a piece of legislation that Harper says will be a top priority if he wins the election. (The government introduced it earlier this year, but it died with the election call in August. Harper hasn’t said why the urgency of that law wasn’t apparent to him until nine years into his tenure as prime minister.)

“Canadians expect their government to protect them from the worst type of criminals,” he said.

As I’ve argued in a previous column, this line relies on an entirely imaginary premise that dangerous murderers are getting parole. When the government introduced the bill during the last parliamentary session, both Liberal and NDP members effectively called out its cynical underpinning.

As for public safety, Harper likes to take credit for the general decline in crime rates since 2006. But as criminologist Anthony Doob and others have shown, it’s merely the continuation of a downward trend that began before the Conservatives took office. It’s not even unique to Canada. Research has shown that increased severity of penalties rarely has any discernable effect on the incidence of crime, and there’s no reason to think the recent decline is an exception.

There are encouraging signs that both of the other parties recognize the folly of the Conservative crime agenda and would take justice policy in a more evidence-driven direction. Both the Liberals and NDP spoke out against some of the Tories’ more egregious efforts such as the life means life act. How much of the past decade’s damage they would seek to reverse is open to question, however. Trudeau has recently said that a Liberal government would consider repealing some of the mandatory minimum sentences enacted by the Conservatives but he hasn’t said which ones.

Likewise, the NDP web site contains an intelligent critique of the financial costs imposed by mounting incarceration under the Tories. It affirms that “Canadians deserve better” but it doesn’t propose anything specific. As I’m writing this, neither party has released any kind of comprehensive platform document on justice issues. We should all hope that changes between now and Oct. 19.

The one crime-related item that has garnered some airtime in the campaign is Bill C-51, the anti-terrorism bill passed into law this summer. Among other things, it gives new powers to the Canadian Security Intelligence Service, creates a new speech crime of supporting terrorism, and expands the availability of preventive detention in relation to suspected terrorists. Professors Kent Roach and Craig Forcese have explained why many of these measures are unnecessary or dangerous. The Liberals have come under justified attack from the NDP for their support of the bill. It’s heartening to see this important issue having at least a cameo role in the broader election debate, although it’s discouraging to see Donald Trump-worthy demagoguery about one woman’s niqab massively overshadow it.

Let me end on a positive note. Both of the principal opposition parties have pledged to take action on marijuana decriminalization soon after taking office. Trudeau has actually gone further, supporting not just decriminalization but legalization. The Conservatives have portrayed this growing consensus as a threat to the health and safety of children, providing more proof of their aversion to nuance and evidence when it comes to justice policy.

But regardless of how exactly the election-day math works out, it’s clear that about two-thirds of Canadians are ready to vote for parties willing to explicitly embrace a long-overdue turn toward a humane and sensible drug policy, at least in regards to marijuana. Here’s hoping that either opposition party, should one of them form the next government, will be willing to take on justice policy more broadly in the same enlightened spirit.  

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at

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