Proposed changes to the criminal justice system would jail more people for longer times, without making the community safer, say legal experts.
If reforms outlined in the ruling national Conservative Party’s platform pass into law, justice will have a stronger fist, for no good reason.
“There is a real price to putting people in jail,” said Canadian Bar Association member Adrian Brooks.
“(Jails) can be, for some people, a place where they learn to be a criminal.
“Or a person who is not dedicated to a life of crime, becomes dedicated to a life of crime.”
The fallout could mean more dangerous communities, according to the Victoria-based lawyer.
“If you insist that people go to jail, you are prepared to take the risk that we are less safe than we were before,” Brooks added.
But gangs, guns and drugs are met with lax sentences and “revolving door justice,” according to Prime Minister Stephen Harper’s “Stand up for Security” justice platform.
This view is being met with little opposition. Both former Prime Minister Paul Martin, and NDP leader Jack Layton, made the same promise during the January election.
While federal politicians seem united behind hard justice, many working in law and corrections say leaders are critically mistaken.
“The first question about mandatory minimums is, ‘do they work?’” said Brooks.
“The answer is clear and unequivocal. “The answer is no. They do not work.”
Most studies on mandatory minimum sentences come out of the US, where some states have used them for years.
“If they worked very well the United States would be the most law-abiding country in the world,” said Brooks.
“And it’s not working.”
Mandatory minimum sentences take no account of circumstance, said Bob Brown, director of the corrections program for the International Centre For Criminal Law Reform and Criminal Justice.
“If it was just a case of zero tolerance, zero tolerance equates further to a mandatory minimum sentence for that particular offence,” said Brown in a recent phone interview.
“If you don’t take into account those mitigating circumstances, I’m not sure if that’s really true justice.”
Without some flexibility, judges cannot craft a suitable sentence, said Kim Pate executive director of the Canadian Association of Elizabeth Fry Societies, a non-profit group representing women in the justice system.
“One of the issues around mandatory minimum sentences coming in, it removes that kind of discretion to provide opportunities or alternatives that fit better with the community or the individuals involved,” said Pate.
Putting people behind bars doesn’t address why a person commits crime, added Pate.
“We know punishment generally doesn’t work to correct behaviour, that it merely encourages people to avoid detection,” she said from Ottawa.
Legislating jail time for these kinds of crimes whitewashes individual complexities, said Brown.
“Individual traits and personality and such have an impact on how criminal behaviour is started in the first place,” he said.
Mandatory minimums are also based on faulty assumptions, said Brooks.
“It would operate as a deterrent if people committed crimes thinking that they were going to get caught, with the knowledge of what that punishment would be,” he said.
“None of those assumptions hold true in a practical sense at all.”
Why is a one-size-fits-all approach potentially harmful?
“Every crime is not the same,” said Brooks. “You have dramatically different situations involving the same crime.”
Even armed robbery can be complex, said Pate, who described a situation she dealt with in the Prairies.
“We found a significant number, particularly of aboriginal women, who had been charged (with robbery) after they had called the police; or after the predominantly white, predominantly middle-class men had called the police,” said Pate.
“Often these were situations where (the women) were being prostituted.”
When the women asked to be paid, they would end up in jail facing robbery charges.
With no faith they will be believed in court, many pleaded guilty to false robbery charges, said Pate.
On the surface the public debate is about jail-time but more profound and difficult questions lurk below.
“It depends on what we want our criminal justice system to do,” said Brown.
“One (theory) is punishment, deterrence, denunciation and incapacitation, all of those kinds of things.
“But if, at the end of the day, what we’re trying to get to is no more victims and a safer community, what we should be trying to do is to find out whatever mechanism is the best one, or the best roadmap to get us (there).”
While restorative approaches may not suit every crime, quashing them will not make Canada safer, added Brown.
Alternatives to jail-time can also help the community heal, said Pate
“There’s a presumption that softer approaches are easier,” said Pate.
“Being confronted by your victim, having to make amends to the person you’ve harmed — in many ways, many people would describe that as harder.”
Why do federal leaders plan to lock-down and claw back alternatives to the cell block?
A Boxing Day tragedy on the crowded streets of Toronto could provide a clue.
While shopping with her family, a teenage girl was killed in the crossfire of a gang-related shootout.
“People view crime problems, as problems that can be solved by a quick fix,” said Brooks.
“They just don’t think through the complexity of it, the seriousness of it.”
Is a “quick fix” the answer?
“The situation (in Canada) can be exacerbated,” said Pate.
“We just need to look to the United States to see examples of that over and over again.”
While in Canada approximately 116 of every 100,000 people are incarcerated, in the US the number jumps to 714 of 100,000, said Brown.
“We now have a situation in the most marginalized (US) communities, — particularly the African American community — where people are more likely to be criminalized than they are to be educated at a post-secondary level,” said Pate.
“Clearly those aren’t the kinds of trends most people would want for their communities.”