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| Emily Stewart |
Douglas bases his argument primarily on one case. An old adage in law is that “hard cases make bad laws.” In other words, although politically attractive, it is a bad idea to make laws based on specific cases that outrage us. These laws inevitably ensnare many people for whom they were not intended.
This has been the reasoning of the Supreme Court of Canada in many decisions striking down mandatory minimums — that too many cases covered by these laws did not merit harsher punishments. Experience also tells us that measures put in place for only a few will inevitably expand to affect more and more people. In Canada, we see this with the dangerous offender designation, which has grown steadily to include more people. The tendency in criminal justice is for penalties to ratchet up (become harsher) rather than down (become more lenient).
A serious crime can certainly bring tragedy and terrible pain for victims and their families, as Douglas describes. The pain of victims is very real and needs to be acknowledged, but the question is whether this pain is a good basis for sentencing policy.
In the case Douglas cites, the person convicted was sentenced in 1988. Thirty-six years later — far more than the 25-year mandatory minimum — he has not been released or even granted temporary absences. Most likely, this man, like many lifers, is going to die in prison (where life expectancy is already much shorter than for the general population). Far from being too lenient, Canada’s sentences for murder are among the longest in the world.
What we do have in Canada, though, is a steady record of wrongful convictions. Would Douglas have been in favour of life without parole, or even execution, for Stephen Truscott? Donald Marshall? Guy Paul Morin? All were convicted of murders, but after decades of imprisonment, all three — and quite a few others — were found to be innocent. Experts believe there are many more wrongful convictions, but we lack a proper process to investigate them. Using the same logic as Douglas, these cases suggest that sentences should be less harsh to mitigate wrongful convictions.
Many people continue to be incarcerated for extra years, despite posing no substantial risk. In Canada, almost everyone convicted of murder will spend years locked up beyond their parole eligibility, and this gap has been getting steadily bigger. Yet we also know that aging itself is strongly correlated with lower recidivism.
The average cost of a year of prison for one person in Canada is about $150,000. That money could help many people rebuild their lives.
Co-author Dorson met many men with life sentences during his time in prison. Most of them had been in prison for 30 or more years and given their low-risk status, were in minimum security. But they were still imprisoned. Some had not spent a day out of prison in more than 30 years. Yes, they had done something terribly wrong in their youth, and 30 or more years later were still paying for it in hard time. Their families, too, had suffered through no fault of their own by having a father, a brother or a son imprisoned for decades.
Parole does not mean “freedom,” either. Everyone on parole is under surveillance, subject to many conditions and can be sent back to prison for any number of reasons. Yet in Canada, less than two per cent of all parolees, and a much lower rate among “lifers,” are rearrested for a violent offence, and even then, mostly for assaults that do not result in significant injury. At the same time, anyone with a criminal record, on parole or not, faces huge barriers to employment, housing and a decent life. Making parole harder to get won’t help any of that.
There is much loss and grief from crime, but it is a sad situation when the only thing we have to offer to someone in pain is more pain for others. Canada should have much stronger supports for victims of serious crime. Harsher sentences are not actually what most victims want but are often all that is offered.
Douglas also badly mischaracterizes what being in prison in Canada is like. He writes that “imprisonment often involves an apartment in a minimum-security facility with liberal day or weekend temporary passes.” This is just wrong. As any formerly incarcerated person will tell you, even at its least restrictive, prison is a really bad place to be. Passes of any kind are extremely hard to get and getting harder, as reported by the CCRSO. Moreover, anyone convicted of murder, especially one considered to be more heinous, will spend many years in maximum security, where conditions are much harsher. As law professor Lisa Kerr has written, criminal judgments rarely take into account the realities of prison. Perhaps many judges just don’t know what prisons are really like even as they send people to them every day.
As the Correctional Investigator has reported many times, prisons in Canada provide virtually no serious opportunity for rehabilitation. Mental health, addictions, education, recreation and health services are entirely inadequate. While some manage to do it somehow, prisons do very little to help individuals improve their lives. The research finds that longer periods of incarceration are related to subsequently more crime, not less.
We do not know the life story of the person convicted in the case cited by Douglas, but we do know that many prisoners in Canada were themselves the subject of abuse or neglect as children and often have experienced struggles with mental health and addictions. And we know that imprisonment does not help people with these problems. We also know that our prisons have disproportionate numbers of Indigenous people who also receive longer sentences and harsher treatment while in prison. Yet, despite all of this, it seems that we still want to lock people up for decades — at a huge cost to us as well as them.
Crime generates a lot of emotion. Uncontrolled emotion is a major cause of crime and pain in human life, but it should not be the basis for our approach to criminal justice. Instead, policies should be informed by evidence about what works best to improve public safety. Harsh sentences are not the answer.
Emily Stewart is the Associate Editor of the John Howard Society blog, advocating for accessible knowledge and reform within the criminal justice system. David Dorson is the pen name of someone who went through arrest, case disposition, imprisonment and parole in Ontario a few years ago. Dorson writes monthly for Law360 Canada and, with Stewart, is co-editor of the John Howard Society blog.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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