Filtering by Tag: Evidence

Evidence, Heroin, and Ideology Addicts

This week Sun Media pundit Brian Lilley wrote an opinion piece titled: 'Tax dollars for Heroin".  

Harm reduction models of addiction treatment are nothing new.  Typically harm reduction models for opiate addiction have focused on methadone treatments.  There has however been some support recently to expand harm reduction treatment to include the limited use of prescription heroin for patients who are at the end of other treatment options and where methadone treatment has not been effective.

Leaving aside the spin put on the issue by Lilley heroin treatment is not about tax dollars but about evidence based policy.

In the recent Speech From the Throne the Conservatives stated:

"Canadian families expect safe and healthy communities in which to raise their children. [...] Our Government will [...] Close loopholes that allow for the feeding of addiction under the guise of treatment."

The question is: does closing loopholes that would allow heroin based treatment make Canadians healthier and safer?

As a excellent starting point Arron Wherry has written a fantastic series of articles (here, here, here) on the issues.  As Wherry points out Health Minister Rona Ambrose told the CBC:

There is no evidence at this point that heroin—giving heroin to heroin addicts—is any way an effective treatment...

Wherry goes on to detail some of the evidence that supports heroin treatment,  including a lengthy report by the European Monitoring Centre for Drugs and Drug Addiction.

Is our Health Minister not aware of this research or is she ignoring it?  Quite frankly I am not sure which is worse?  Either way Ambrose's views are entirely consistent with the Conservatives' abandonment of any pretense of evidence based policy decisions.

In his piece Lilley quotes Justin Trudeau as saying, “I respect science, I respect scientists who have done studies".  Lilley goes on to say:

"Except not all scientists, not all doctors agree with this sort of study. Trudeau and Davies don’t just want to portray those who oppose giving heroin to addicts as anti-science, which we are not."

I am not sure exactly what studies Lilley is referring to (I assume possibly this opinion) but he is quite right - there is rarely a consensus by all experts on any issue. 

The real issue is not that there can be disagreement amongst experts but that the Government must honestly evaluate all evidence before making decisions, something Ambrose has utterly failed to do. 

The same experts who disagree with heroin treatment do seem to support other harm reductions methods such as methadone treatment.   Lilley makes it clear that although he supports addiction treatment (which is commendable), he does not support harm reduction:

"I use my own money to support drug treatment centres that don’t believe in the harm reduction method but still have great success in helping people with strong addictions and criminal backgrounds to turn their lives around. "

It is well and good for individuals to discount evidence when allocating their personal funds. It is another matter when elected officials and policy makers ignore evidence.  

Trudeau is not as Lilley suggest using science to 'whitewash' his ideology.  In fact the opposite seems to be true.  The Conservatives continue to ignore evidence to justify their ideological position. 

Lilley is correct that when the Government ignores evidence courts can often become involved in litigation about policy issues.  Perhaps if the government took its obligations to Canadian's seriously and actually considered all evidence (not just the evidence that supports their positions) we would hear less outrage about interventionist courts.   

As Lilley says: Don’t say you weren’t warned.

Thoughts on the Speech From The Throne

Yesterday the Governor General delivered the Conservative Government's Speech from the throne.  The full text of the speech can be found here

The speech dealt with many matters that are of fundamental importance to Canadians - like the ability to purchase unbundled TV channels.  Directly following this heady TV policy announcement the Conservative Government laid out their criminal law priorities.  Yesterday I wrote that I expected to be disappointed with the announced criminal justice policies and I was. 

With respect to criminal law policy here is an excerpt of the Conservative announcements: 

Supporting Victims and Punishing Criminals

Our Government believes that the justice system exists to protect law-abiding citizens and our communities. For too long, the voices of victims have been silenced, while the system coddled criminals. Our Government has worked to re-establish Canada as a country where those who break the law are punished for their actions; where penalties match the severity of crimes committed; where the rights of victims come before the rights of criminals.

Our Government will introduce a Victims Bill of Rights to restore victims to their rightful place at the heart of our justice system.

Canadians are rightfully alarmed when violent offenders found not criminally responsible for their actions are released into our communities. Our Government will re-introduce legislation to ensure that public safety comes first.
But we must do even more to protect our children. Child predators should never be let off with only a single sentence for multiple crimes against children. Canadians demand that those who prey on our children pay the full price for every devastated life. Our Government will end sentencing discounts for child sex offenders.
It is also unacceptable that dangerous and violent offenders are released into our communities before serving their full sentences. Our Government will end the practice of automatic early release for serious repeat offenders.
But for the worst of all criminals, even this is not enough. Canadians do not understand why the most dangerous criminals would ever be released from prison. For them, our Government will change the law so that a life sentence means a sentence for life.
Canadians also know that prostitution victimizes women and threatens the safety of our communities. Our Government will vigorously defend the constitutionality of Canada’s prostitution laws.

As expected there is not much evidence based policy to be found here.  More troubling is the fact that the Conservatives continue to fundamentally miss-frame any debate about criminal law policy.

The Conservatives contend that "For too long, the voices of victims have been silenced, while the system coddled criminals." 

This is simply untrue.  There are many sections in the Criminal Code that apply to victims (or alleged victims).  Complainants can, in the appropriate case, testify via video link or behind a screen so as not to face the accused.  Complainants can seek the assistance of support persons while providing testimony.  In some cases complainants need not testify and their prior statements can be read into evidence.  In all cases victims have access to a robust victims service office.

Additionally, after a conviction and when a court determines the appropriate sentence, victims have the right to provide a victim impact statement - they are not silenced as the Conservatives claim.  Courts must consider victim input.  Section 722 of the Criminal Code directs:

For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. 

Quite simply, victims are not silenced and to suggest otherwise is misleading. 

More importantly criminals are not coddled - again the Conservative are lacking in intellectual honesty.  The 'criminals' that the Conservatives talk about are actually 'accused persons' - who are presumed innocent.  People accused of crimes have constitutional, statutory, and common law rights; for example: the presumption of innocence, rights against unreasonable search and seizure, and rights against self incrimination.  These rights form the bedrock of our justice system.  Giving life to fundamental rights such as these is not coddling criminals and to suggest any different is disingenuous. 

The Conservatives also announced that it is "unacceptable that dangerous and violent offenders are released into our communities before serving their full sentences."

Indeed the Conservatives go further to suggest that "Canadians do not understand why the most dangerous criminals would ever be released from prison. For them, our Government will change the law so that a life sentence means a sentence for life."

I don't hold out much hope that the government will listed to the evidence about the  benefits of our parole system.

For example, studies have found that:

  • Eliminating early parole produced no consistent effects on crime rates;
  • Parole is advantageous given the increasing human and financial costs associated with prison, investing in effective reentry programs may well be one of the best investments society can make;
  • Supervising offenders in the community effectively can reduce criminality among those on parole or otherwise serving their sentences in the community;
  • Although violations of parole do occur, the number of offenders who meet the terms and conditions of their release provides impressive evidence of the effectiveness of the parole system in Canada.;
  • 50 per cent of offenders who were released directly from prison 12 years ago, without the benefit of gradual and controlled supervision, were later re-admitted for having committed new offenses. By contrast, only 10 per cent of those who were released on parole and completed their sentences under parole supervision, were subsequently re-admitted to federal penitentiary with new offenses.

Obviously there can be a debate about the evidence for or against any policy initiative.  However, in addressing release and parole the Conservatives ignore their own literature and give no confidence that there will be a legitimate debate or examination of the evidence. 

As a starting point I would commend the Conservatives start by reading the easy to understand 'Myth vs. Reality' fact sheet produced by the Parole Board of Canada.

Perhaps Canadians don't have a full understanding of the fundamental principles of our criminal justice system.  Education and examination of the evidence over blind ideology should be the answer. 

The Conservative's reckless disregard for evidence based policies does not make us safer. Maybe the Conservatives know this.  Perhaps appeasing their ideological base and not enhancing public safety is the Conservatives ultimate goal.  



Politics, Law, and Baseball

Politics, law, and baseball are three of my most favourite things. 

I love baseball for it's history, nostalgia, and importantly for the ability to quantify the game through modern metrics.  There are countless books that evaluate baseball using these quantifiable methods, with Michael Lewis's Moneyball being the most famous example (although there are other books I would recommend more highly). 

This new, sometimes called Sabermetric, approach to evaluating baseball focuses on evidence.  True to the scientific method proponents of sabermetrics develop a hypothesis and then look to the quantifiable evidence to evaluate that hypothesis. 

Thus we now know how valuable a stolen base actually is, why one should almost never bunt, and how being a 'clutch' player is mostly a myth. 

Keith Law recently wrote a fantastic article on the problems with the 'clutch' argument.  'Clutchiness' or the supernatural ability to raise ones level of play in high leverage baseball situations, is largely a myth.  It is not supported by the evidence.  It is a narrative (and sometimes a compelling one) which is used in a post hoc fashion to fit our observations.  

What does this have to do with politics and law? 

As I wait anxiously for the Conservatives speech from the throne I can't help but wish that the Conservative Party read Keith Law's articles and other sabermetric writing. 

I have written before on the Conservatives Partty's love of ideology over evidence.  I continue to wish that the Conservatives would look to the evidence when considering policy and developing legislation. 

Canadians' deserve a government that relies on evidence and not partisan post hoc thinking when developing policies and laws.   It is only through the use of evidence and intellectual rigour that we can be confident that policies and legislation will accomplish their states goals.

Sadly I don't hold much hope of finding evidence based policy in today's speech from the throne. 

It is a tragedy when more intellectual rigour can be found between the foul lines than in Parliament.

Presumption of Innocence and DNA

In a recent interview Conservative Justice Minister Peter McKay floated the idea of seizing DNA samples from people who have been accused but not found guilty of a crime.  As reported by the Globe and Mail McKay said:

"I know there’s always privacy considerations in the backdrop to this and it has to be balanced in the bigger picture... But I think that, you know, the timing of the taking of DNA is something that could very well emerge in the future as another issue of importance."

The presumption of innocence forms the bedrock of our judicial system.  It is the golden thread that runs through all criminal law.  If McKay's vision comes to pass it will represent yet another erosion of the presumption of innocence.

Currently the Identification of Criminals Act allows the photographing and fingerprinting of most people accused of criminal offences.  Indeed this forms the justification used by the proponents of pre-conviction DNA sampling. 

In short, the simplistic logic is that a DNA sample is just the modern version of a finger print.  This narrow view misses the point.

The Identification of Criminals Act's primary purpose is to confirm the identity people charge with a serious offence.   Fingerprinting fulfills the purpose of the act.  The taking of DNA for this purpose would be surplusage. 

Quite simply, the taking of DNA would not be to identify the accused but to run the DNA information through databases to further other investigations.  This is not the primary purpose of the Identifications of Criminals Act.

The Supreme Court discussed the issues in R. v. Beare; R. v. Higgins :

"Fingerprints serve a wide variety of purposes in the criminal justice system. These include linking the accused to the crime where latent prints are found at the scene or on physical evidence; determining if the accused has been charged with, or convicted of other crimes in order to decide whether, for example, he should be released pending trial or whether he should be proceeded against by way of summary conviction or indictment; ascertaining whether the accused is unlawfully at large or has other charges outstanding; and assisting in the apprehension of an accused should he fail to appear. As well, fingerprints taken on arrest are used to identify prisoners with suicidal tendencies, sex offenders, career criminals and persons with a history of escape attempts so that they can be segregated or monitored as may appear appropriate.

Fingerprints are also of great assistance in the judicial process. Thus in addition to their utility in positively identifying an accused, they may also assist the Crown in determining the punishment it should seek by revealing, for example, whether the accused is a first offender or otherwise. This, of course, will be of assistance to the court in imposing an appropriate sentence."

The Supreme Court  went on to find that the taking of fingerprints valid because it did not represent a penetration into the body or the removal of a substance from the body:

"It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime [...] must expect a significant loss of personal privacy. He must expect that incidental to his being taken in custody he will be subjected to observation, to physical measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it."

Clearly the taking of DNA is more intrusive and very different in nature than the taking of a fingerprint.

The power to fingerprint incident to arrest for an indictable offence has its roots in and exists at common law.  The existence of a common law authority to fingerprint persons in lawful police custody is supported by the decision of the Supreme Court of Canada in R. v. Stillman  In that case the Court was careful to distinguish the taking of fingerprints on the one hand from the taking of blood samples or hair samples.

DNA is not a modern version of a fingerprint.  DNA is the building blocks of who we are as individuals.  DNA contains information about our intimate personal characteristics.  Its extraction requires intrusion into our body.  Its nature is ripe for misuse.  

There are currently institutional problems with the retention of fingerprints of individuals ultimately found to be not guilty.  Quite simply once the state has an innocent persons fingerprints there is an uphill battle in ensuring the prints destruction. 

It does not strain the imagination to conceive of the privacy problems with the state having DNA samples of any citizen ever charged with a crime. 

Demonstrating the rankest example of simplistic (and circular) logic employed by proponents of pre-conviction DNA seizure, Calgary's Chief of Police Rick Hanson told the Calgary Sun:

“There’s a thousand reasons that people would say no and there’s only one reason to go ahead with it and that’s because it’s the right thing to do in this day and age,"

Logic like this has no place in any rational dialogue.  It may be politically advantageous for Mr. McKay to suggest a pre-conviction DNA databank.  It may even assist in solving some crimes.  Against the 'thousands of reasons to say no' this does not justify DNA sampling of the presumed innocent (and in many cases factually innocent). 

The purpose of laws in a free and democratic society should be to liberate and to maximize freedom.  McKay's proposal is overly intrusive and antithetical to those ideals.


Evidence Based Policy: Conservative Party Announces New Sex Offender Legislation

The Conservative Party of Canada has recently announced new legislation targeting those who commit sexual based offences.  The legislation would require those convicted of sexual offences to notify police in advance of international travel plans, and authorize broad information sharing between Canadian and international agencies.  

Most problematically Mr. Harper also promised a national, online database accessible to the public that would list information about offenders. 

A publicly accessible online database of offenders is a step that should be taken very hesitantly and with very careful examination given the potential disastrous implications (examples of which can be seen here and here).

Laws should be based on evidence with an honest accounting of all the potential costs and benefits.  This honesty is missing from Conservative Party policy.  

Given the Conservative Party's track record with criminal justice legislation I do not hold out much hope that any new laws will represent anything more than ideological pandering. 

Quite simply the Conservative Party does not draft laws based on evidence.  They legislate based on public reaction and ideology.  The Conservative Party legislates under the guise of public safety but their measures do little to make us safer.

From the Conservative perspective you either stand with the government or you stand with the sex offenders.  This mind set is not only intellectually dishonest but it is unsafe.

Will Mr. Harper listen to the evidence as it relates to sexual offenses?

A 2008 study found that New York’s Sex Offender Registration and Notification Law had no impact on reducing sexual re-offending by rapists, child molesters, or other sex offenders.  The study concluded that:

One of the main reasons that sex offence registries and community notification schemes do not have any impact is that the recidivism rate for sex offenders is not remarkably high. Most sex offences, it appears, are committed by those who have not previously been convicted of a sex offence. “Because registration and community notification laws were based on false assumptions regarding sex offenders and sexual offences, attention and resources are diverted from those most common types of sex offences – those committed by first-time sex offenders and those who have a pre-established relationship with the victim – to ones perpetrated by the stereotypical sex offender

A 2003 study dealing with sex offenders registration and community notification came to the conclusion:

Clearly, registries and notification systems are not without their own problems and, as such, demand careful scrutiny before being implemented. This warning gains even more salience when one recognizes that their proclaimed benefits have yet to receive empirical support. 

A 2007 study found that notification systems are in fact more likely to negatively effect overall safety and do not reduce recidivism rates:

Clearly there are negative consequences of efforts to publicize the identity of those who have been released from prison after serving time for sex offences. Given the absence of convincing data on the efficacy of these procedures in reducing recidivism, it would appear that these broad notification policies “are more likely to undermine the stability of sex offenders than to provide the sweeping protection they intend to achieve” 

Many studies have shown that communities are not made safer by the type of legislation embraced by the conservative, see:

  • During, Caleb (2006). Never Going Home: Does it Make Us Safer? Does it Make Sense? Sex Offenders, Residency Restrictions, and Reforming Risk Management Law. Journal of Criminal Law & Criminology, 97(1), 317-363.

  • Harris, Andrew J. R.; Hanson, R. Karl (2004). Sex Offender Recidivism: A simple Question. Ottawa: Public Safety and Emergency Preparedness Canada.

  • Levenson, Jill S.; Cotter, Leo P. (2005). The Impact of Sex Offender Residence Restrictions: 1,000 Feet from Danger or One Step from Absurd?. International Journal of Offender Therapy Comparative Criminology, 49(2), 168-178.

  • Petrosino, Anthony J.; Petrosino, Carolyn (1999). The Public Safety Potential of Megan’s Law in Massachusetts: An Assessment from a Sample of Criminal Sexual Psychopaths. Crime and Delinquency, 45 (1), 140-158.

Sexual offences are reprehensible and must be dealt with seriously.  At the same time criminal laws dealing with sexual based offences should consider the available evidence. 

It may be that Canada requires new legislation to deal with emerging criminal law issues, but it is only when evidence is considered that communities can be made safer.  Sadly it seems that this is not  Mr. Harper goal.  Quite tellingly Mr. Harper said: 

“We do not understand why child predators do the heinous things they do and, in all frankness, we don’t particularly care to.” 

If Mr. Harper truly is interested in making communities safer he should care.  We should care.  Legislation should not be reactionary.  It should not be ideological.  As citizens we deserve logical and evidence based policies.

Reactionary legislation may make us feel safer, but this is a cold comfort if the protections offered are more illusory than real.