Bill C-26 – Protecting Children and Disregarding Evidence

February 27, 2014

Today Justice Minister Peter MacKay tabled bill C-26 – the Tougher Penalties for Child Predators Act.  The bill was announced as necessary pieces of legislation to better protect children from a range of sexual offences.

Bill C-26 includes measures that would:

Increase mandatory minimum sentences;

Eliminate judicial discretion through mandating that sentences for a variety of crimes be served consecutively – one after another;

Establish a publicly accessible database of offenders which would include detailed personal information.

There is no debate that the protection of children should be a priority.  There is no question that sexual crimes committed against children are repugnant and everything should be done to prevent such victimization.  

Unfortunately the measure contained in C-26 will likely not advance the protection of children.  

C-26 recycles many of same failed Conservative policies – minimum sentences, reduced judicial discretion and relaxed privacy standards – that have attracted so much recent scrutiny.

The Conservative Party legislates under the guise of public safety but their measures do little to make us safer. Quite simply, legislation that ignores evidence sacrifices effectiveness.  

The goal of C-26 – the protection of children – is simply not supported by evidence.  C-26 is yet another example of Conservative legislation based on public reaction and ideology.  

Simplistic policies – no matter how attractive – don’t advance societal protections.  Society is made safe by laws that work – that are based on evidence.

Minimum Sentences

One of the main planks of C-26 is the imposes higher minimum sentences for all manner of sexual offences.  The government says this will deter crime and thus protect our children from offence.  

The evidence suggests otherwise – minimum sentences do not make communities safer. They do not deter the commission of offences. They impede rehabilitation. They are costly. They are simply unjust.

Over the last number of year I have testified at numerous Senate and House committees on criminal law legislation that include minimum sentences, including:  Bill C-268, Bill C-54, Bill C-299, and Bill C-299.    

At these hearings the government also heard from criminologists, researchers, correctional officials, and other expert witnesses, all of whom do not support mandatory minimum sentences.  

There has been little or no evidence presented pointing to minimum sentences as effective policy.

During committee hearings on bill C-54 – another minimum sentence bill directed at child sexual offences – Dr. William Marshall, Mr. Randall Fletcher (Sexual Deviance Specialist – employed at the Office of the Attorney General of Prince Edward Island) and Dr. Stacey Hannem (Chair, Policy Review Committee, Canadian Criminal Justice Association) all gave evidence suggesting minimum sentences were a poor policy choice.

In fact, there was little or no empirical evidence presented during the bill C-54 hearings that provided support for the effectiveness minimum sentences in reducing crime or make communities safer.

The Library of Parliament has clearly sets out the potential constitutional difficulties, the lack of utility, and the negative impacts of mandatory minimum sentences.  Their legislative summary informed the government that:

Mandatory minimum terms of imprisonment are generally inconsistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as they do not allow a judge to make any exception in an appropriate case. […] A mandatory minimum sentence may constitute cruel and unusual punishment, in violation of the Canadian Charter of Rights and Freedoms, if it is possible for the mandatory punishment, in a specific matter or reasonable hypothetical case, to be “grossly disproportionate,” given the gravity of the offence or the personal circumstances of the offender.

A study published in 2002 concluded that existing research generally does not support the use of mandatory minimum sentences for the purpose of deterrence, or for the purpose of reducing sentencing disparities.  

One Canadian meta-analysis found little difference in general recidivism rates, regardless of length of incarceration or whether the offender was given a prison or community sanction. In fact, prison produced slight increases in recidivism.

Decisions regarding appropriate punishment [through mandatory sentences] are therefore transferred from the judiciary to the prosecution.

When a charge for an offence carrying a minimum sentence is maintained, the accused has no incentive to plead guilty, more likely leading to a costly trial.

Incarcerating offenders for longer periods results in increased prison costs, which are not necessarily offset by any reduction in crime rates and recidivism.

Over the last number of years the government has heard from many other experts who counseled extreme caution with respect to the use of mandatory sentences.  These witnesses include (but are not limited to): Craig Jones – Executive Director of the John Howard Society, Isable Schurman – Law Professor, Julian Roberts – Professor of Criminology, Tim Stuempel – Chair, Policy Review Committee, Canadian Criminal Justice Association, and Joseph Di Luca, Vice-President, Criminal Lawyers’ Association.

The House committee on Justice and Human rights has also heard testimony from Anthony Doob, a highly respected criminologist from the University of Toronto.  For the last 35 years Mr. Doob has carried out research on a number of different aspects of the justice system, most notably, on sentencing, imprisonment policies, and public attitudes concerning the criminal justice system.   Mr. Doob testified:

The evidence of [mandatory sentences] ineffectiveness is clear. Numerous studies have been carried out in various countries demonstrating that mandatory minimum penalties of this kind do not deter crime.

You may have heard evidence that contradicts this conclusion. I urge you to examine this evidence carefully. The single study that is most often mentioned by government representatives and others as evidence supporting the effectiveness of this aspect of the bill has been thoroughly discredited.

Even the Governments own research has been critical of minimum sentences.  A 2005 Justice Department Report found, after a review of the evidence, that:

Minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits. Nevertheless, mandatory sentences remain popular with some Canadian politicians.

The evidence is clear – minimum sentences play little to no role in the deterrence of crime.  Minimum sentence don’t reduce crime – they don’t make us safer.  In fact the evidence suggests that the opposite is true.  


Limits on Judicial Discretion

C-26 places further limits judicial discretion by mandating that sentences in certain situations be served consecutively – one after the other.

Further limiting a judges ability to craft the appropriate sentence does not protect children.

There already already exists a presumption that sentences for offences without a reasonably close nexus should be served consecutively.  Judges however have historically enjoyed the discretion to impose concurrent sentences if there was a nexus between the offences or if it was in the interests of justice.

The rationale  for this discretion was succinctly put by Sopinka, J. in R. v. Macdonell [1997] 1 S.C.R. 948 where the Supreme Court held:

The decision to order concurrent or consecutive sentences should be treated with the same deference owed Appellant Courts to sentencing judges concerning the length of sentences ordered. The rationale for the deference with respect to the length of the sentence clearly stated in both Shropshire and M. (CA) applies equally to the decision to order concurrent or consecutive sentences. In both setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her firsthand knowledge of the case.                     

The rational for judicial deference is obvious.  Sentencing judges – who know the facts of the case, the circumstances of the offender, and the input of the victim – are in the best position to impose the proper and just sentence – and they do.  

There is little evidence that Canadian courts are imposing lenient sentence for sexual offences perpetrated on children.  In fact, sentences for these types of offences routinely exceed the minimum sentences mandated by C-26.

There is simply no reason to remove a judges discretion to craft the appropriate sentence.  

Limiting judicial discretion and increasing sentence length does not prevent crime – in fact it has been shown to interfere with rehabilitation and reintegration.  In other words limits on judicial discretion can decrease saftey.


Sex Offender Registries

The government has also trumpeted the use of sex offender registries as a way of keeping communities safe.  

C-26 creates a registry that would require an offender to provide – at a minimum – their name, birth date, gender, physical appearance, photograph, and area they reside.  

The question is – does this type of  registry actually protect communities.  By now I think you can guess the answer – the evidence suggests they do not and may actually make matters worse.

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.

There is no lack of research on sexual offences, sexual offenders, recidivism, rehabilitation, and community reactions.  In fact from September 1997 until April 2011 the Department of Justice funded Criminological Highlights – a publication that compiles  methodologically rigorous criminal justice research.  

Recently the team behind Criminological Highlight has examined all studies relating to sexual offences and societies response to them.  It should come as no surprise that the Conservative government’s policies – including the measure included in bill C-26 – find very little support in the empirical research.

It may be that Canada requires new legislation to deal with sexual offences committed against children, but it is only when evidence is considered that communities can be made safer. 

Sadly it seems that this is not  the government’s goal.  Quite tellingly the 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, Mr. MacKay and the Conservatives are truly interested in making communities safer they should care.  We should care.  

It is offensive that legislation like C-26 is drafted without any regard for the evidence.  It is more offensive that those who question the conservative tough on crime measure are vilified.  

It is unacceptable that legislations marketed as making our children safer may do the opposite.

Given the importance of the protection of our children bill C-26 should be the one area where even the Conservative’s blind ideology gives ground to sound evidence based policy.