Justice Hasn’t Been Harperized

It is now conventional wisdom that the Harper Conservatives are transforming Canadian criminal justice, a fact which many pundits cite as evidence of the incremental Harperization of Canadian society. It’s pretty hard to disagree.

The Conservatives have passed a slew of punitive legislation, with more to come, and on Tuesday news stories noted that the cost of the federal correctional system was expected to grow more than 80 per cent between the time the Conservatives came to power and 2011-2012. I suppose I could say “I told you so.” For more than a decade, I’ve been writing about the catastrophe wrought by so-called tough on crime policies in the United States and warning Canadians not to make the same mistake. But I won’t, at least not yet. Because I think the conventional wisdom is misinformed.

Start with that figure about rising prison costs. It uses a baseline of 2005-2006, which is misleading since the Conservatives didn’t come to power until February, 2006. With the more accurate baseline of 2006-2007, prison costs under the Conservatives will rise 57 per cent, not 80 per cent, and that has to be compared to the 23-per-cent rise under the Liberals in the six years before Harper took office. Clearly, the Conservatives have greatly boosted the rate of growth of spending, which is alarming at a time when crime is falling and the federal budget is in the red. But let’s not exaggerate.

Then there’s mandatory minimum sentences. Yes, the Conservatives love them. Yes, they’re a terrible mistake. But pundits talk about mandatory minimums as if they were invented by Stephen Harper. They weren’t. There have always been mandatory minimums in the Criminal Code. Two of the most important are for murder and crimes committed with guns: the former was passed by the Trudeau Liberals, the latter by the Chrétien Liberals.

Or consider the principles of sentencing set out in the Criminal Code. The Chrétien Liberals created them in the mid-’90s. Most are uncontroversial. But they include an explicit direction to judges to use incarceration only as a last resort. That’s pretty liberal. And the Conservatives haven’t touched it.

In fact, the only significant revision of the sentencing principles essentially tells judges to be harder on the offender if the victim of the crime is “a person under eighteen years of age.” It was passed by the Martin Liberals.

And have a look at the Corrections and Conditional Release Act, which is the foundation of the correctional system. The CCRA says “offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence.” And it directs prison officials to “use the least restrictive measures consistent with the protection of the public, staff members, and offenders.” That’s pretty liberal, too. It was passed by the Mulroney Conservatives.

In keeping with the CCRA’s principles, the prison system assesses every new prisoner to determine how likely he is to commit violence or attempt escape. That risk assessment determines whether the prisoner is sent to a maximum, medium, or minimum security prison. In other words, the loss of liberty for a specified time is the prisoner’s punishment and prisoners are only subjected to the much harsher conditions of maximum security as a necessary security measure – never as a form of additional punishment. This is dramatically different than most American penal systems. And the Harper Conservatives haven’t touched it.

But this system has been revised, once: Convicted murderers are now automatically sent to maximum security, for a minimum of two years, regardless of the security risk they pose. The Chrétien Liberals made that change.

What’s going on here is politics. If Stephen Harper were hell-bent on transforming the justice system, he would replace the sentencing principles and the CCRA. He would have to. They’re foundational.

But amending legislation few Canadians have ever heard of is no way to get a bump in the polls or thrill the base. So Harper opts for crowd-pleasers like mandatory minimum sentences instead.

Does that sound too cynical? For five years, Harper got great mileage by complaining that his urgently needed crime reforms were being blocked by the opposition. On occasion, that was true. More often it wasn’t. In fact, his bills often had opposition support. So Harper himself delayed his allegedly urgent legislation because its political value would end the moment it became law.

Dut to a relentless fixation on the political, the damage done to the justice system is mostly superficial. The foundations are untouched. Which leads to a paradoxical conclusion: If the foundations of the justice system are to survive Stephen Harper, he must continue to obsess about short-term political gain over serious policy.