Harper’s Monstrous Criminal Justice Agenda

September 19, 2014

This article first appeared in iPolitics.ca on September 18.  Its well worth a subscription – make it so….

Another fall in Ottawa, another sitting of Parliament — we’re all a summer older and the Harper government still hasn’t learned a thing about passing criminal laws that work.

Let’s recap, just for laughs: When the House of Commons adjourned for the summer the Conservatives — as they love to do — were talking tough on crime. The courts, on the other hand, were paying close attention to logic and constitutionality of the government’s criminal justice agenda.

And we all know how that turned out. Minimum sentences, mandatory victim fines and the retroactive elimination of parole – all Conservative legislation, all declared unconstitutional by the courts.

And the government’s losing streak continues: Last week, the Ontario Court of Appeal declared a fundamental aspect of the ‘Truth in Sentencing Act’ to be unconstitutional.

The Act sought to impose strict limits on the amount of credit that an offender could receive for pre-sentence custody.

Historically — and for very good reasons — judges retained the discretion to determine the amount of credit an offender could receive for time spent in custody prior to conviction. This credit could then be applied to reduce the offender’s ultimate sentence.

Over and over again, courts have recognized that it’s fundamentally unfair to treat a day in custody prior to sentencing as equivalent to a day in custody after sentencing. There are two reasons.

The first is quantitative: Pre-sentence custody does not count towards parole eligibility or earned parole remission.

The second is qualitative: Conditions in remand facilities are deplorable. While waiting for their trial, the accused — and these are people presumed to be innocent, remember — are warehoused in remand detention centers that are overcrowded, dangerous and devoid of any rehabilitative programming.

As a result – and despite the Conservatives’ best arguments at the Supreme Court – when the circumstances justify it, judges are still able to increase pre-sentence credit to account for these inequities.

The Truth in Sentencing Act sought to completely eliminate this aspect of judicial discretion in cases where an offender had been denied bail because of a past criminal record.

The Ontario Court of Appeal unanimously found that the elimination judicial discretion on this point “offends the proportionality principle, and the parity principle which is a vital part of it, by subjecting identically placed offenders to different periods of incarceration, depending on whether they are able to obtain bail, for reasons that are irrelevant to sentencing. It also produces effects that are grossly disproportionate.”

Not just disproportionate — illogical. The real problem with the Truth in Sentencing Act is that it makes no sense. Let’s talk cases:

Imagine we have two different people accused of identical crimes. Each has a criminal record. The first offender has strong community support and is released on bail. The second offender is less lucky – maybe he’s poor, homeless, or without family — and he’s ordered remanded into custody pending trial.

If both these offenders ultimately receive identical sentences, the offender who was denied bail will actually spend more time in jail — because the time spent in pre-sentence custody (in abysmal conditions) doesn’t count toward parole.

And because the poor and marginalized are less likely to obtain bail, they’re the ones who stand to lose the most through the Truth in Sentencing Act. That should have been obvious to the Conservatives. Maybe it was. But the bill’s purpose was to play up the government’s crime-fighting cred with the Conservative party base. When your objective is purely political, logic is irrelevant.

But rabid partisanship and faulty logic tend to play poorly in our courts; judges like to hear arguments based on facts. The Ontario Court of Appeal’s decision on the Act is an indictment the Harper government’s entire approach to criminal law: “Like many attempts to replace the scalpel of discretion with a broadsword, its application misses the mark and results in unfairness, discrimination and ultimately unjust sentences.”

The Conservatives say that their heavy-handed take on criminal law is necessary to restore public faith in the justice system. Ironically, the Court of Appeal suggested that the opposite is true — that the public’s confidence in the criminal justice system is being eroded by irrational laws that end up exploding in their authors’ faces.

You think they’d learn. You’d be wrong. The track record of the Harper government’s crime agenda reads like the ancient Greek myth of the hydra: For each unconstitutional law the courts cut down, two new laws — equally stupid — grow in its place.

And the man leading the parade isn’t turning it around. He may not know how. Speaking to a packed partisan crowd at the Ottawa Convention Centre recently, Prime Minister Harper vowed more of the same:

“This fall we will do more. We will move to speed the removal of foreign criminals from our shores, we will end automatic early parole for serious offenders, and we will make sure that a life sentence means what it is supposed to mean — prison for life,”

More parole changes. Indefinite incarceration … until death. Think about that for a minute.

Eliminating any possibility of parole would be a profound change to Canadian criminal law. At the very least, it’s something that deserves careful and considered debate. But the Conservatives’ don’t like debates, don’t like being contradicted and aren’t interested in hearing any facts that don’t support their arguments. So if there is a debate, it won’t be a long one.

Last year the Supreme Court found the last Conservative attempt at parole reform — the retroactively limiting of parole — was unconstitutional.

Last week the Ontario Court of Appeal found that the section of the Truth in Sentencing Act that eliminated any exercise of discretion to account for parole disparities was also unconstitutional.

Given Harper’s tub-thumping, I suspect the courts will be called upon to slay yet another dragon. And unless things change in Ottawa, two new heads will grow in its place.

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