A Meaner Canada : Junk Politics and the Omnibus Crime Bill
Canada’s new Parliament is poised to reshape Canada’s criminal justice system and, in significant ways, Canada itself. Within 100 sitting days of its resumption Parliament will pass an omnibus “tough on criminals” bill that represents the biggest change to our justice system in recent memory. But these changes are coming with disturbingly little controversy or opposition. They are not part of some so-called hidden agenda. This is what most or at least many Canadians voted for and, among those who did not, few seem much worried. Political opposition has been muted. Who wants to be seen as soft on crime, soft on criminals, concerned about inmates? Whether through our active support or our indifferent silence we are all participating in a watershed moment for Canada without so much as a tough conversation. And it matters, it matters for our safety and it matters for the kind of country we are becoming. Surely one key test of any society is how we treat the most vulnerable and, even more particularly, the most despised. Justice policies offer a glimpse into the soul of a nation.
Before getting to the substance, let me admit that a very significant part of my public service career was spent in the justice sector, in what was then the Ministry of the Solicitor General (now Public Safety), the Justice Department and the National Parole Board. Let me add that in all the time I worked on these issues I never met an official, elected or unelected, who was “soft on crime”, not ever, not once. We had of course many debates, many disagreements, but without exception those charged with policy and practice cared about victims and their families, wanted to prevent crime when they could and reduce its economic and human costs when they could not. Policies and practice were guided by three imperatives: public safety – what does the evidence tell us about what works to make our homes and streets safe; freedom – how to ensure a measured response that protects our civil liberties and constrains the state and holds it accountable when our freedom is at stake; and justice – what is a just, that is, proportionate and humane punishment, when a citizen is found guilty of a crime. These are difficult questions and can rub up against each other but, on balance, we have done pretty well. Of course the system must adapt to changing times and new knowledge, but rates of crime and violence have been falling for about three decades. That does not permit complacency but nor does it suggest the need for a fundamental change of direction.
So, where are we now headed? And why?
As in any Omnibus legislation, the Bill contains some good things, some bad things, some very bad things, and some things that need clarification. And all of this deserves debate. The National Post did a pretty thorough and balanced review of the elements which I won’t try to reproduce here. But the direction of these proposals, on top of legislation passed in the previous session, is clear: more focus on punishment, greater use of prison as a penalty, increased police powers, and fewer protections of our privacy and civil liberties. Mandatory minimum sentences will increase prison time not only for sexual predators but for those convicted of growing a few marijuana plants. Even as police discretion is increased, the discretion of judges will be further constrained, making it harder for them to fit the penalty to the circumstances, to address aggravating and mitigating factors. House arrest will be off-limits even for some property offences. Young Offenders provisions will be toughened up. Pardons will be more difficult to get. Surveillance of our internet activity will be easier and without warrant, and preventive detention of those we fear might commit terrorist acts will continue with the process to determine its use to be secret and therefore outside public scrutiny.
What’s wrong with this, many will ask. For one thing, the evidence and the experts are pretty much in agreement that this will not make us safer. These kinds of policies, mandatory minimum sentences for example, have proved to be expensive but without any measurable contribution to safety. Quite the contrary, and these are not the views of bleeding hearts, soft on crime. Most of these experts here and elsewhere know that some people belong in prison because justice demands it and that some need to be there because they present a continuing danger. In fact, Canada uses prison as a punishment far more than our European counterparts. But we have also learned – from the evidence and from our experience – that prison can harden those who would have been better diverted from the system in the first instance and that overlong sentences can lose those who might otherwise have been successfully integrated into their communities as law-abiding citizens. We have learned that a preoccupation with punishment can easily divert us from doing what actually makes us safer. And, in its way most troubling, these policies make for a meaner Canada.
For another thing, we know that the preservation of our freedoms, our privacy, our civil liberties requires strong constraints on government’s ability to interfere with those freedoms – that is what warrants are all about, and fair and open trials. That means that if we want to live in a free and democratic society we have to be ready to live with the inevitable risk that entails – and in our pretty safe country, with our balanced crime policies, that has been relatively little to ask. How is it that we are so muted as our civil liberties are undermined? Why is it that we seem more worked up about the risks of government intervention in commerce than we do with its interference in our fundamental freedoms?
For yet another thing, these policies cost money, lots of money. Imprisonment is expensive. And that means less money for those things that might have made us truly safer – prevention, education, rehabilitation. In many respects the dollar we spend on social policy is non-discretionary. The only question is what proportion do we choose to spend on avoiding problems through, say, addressing the unsupportable and growing level of inequality in Canada and what proportion do we spend on the back end, especially prison, to deal, in part at least, with the consequences of inequality and our inattention to it. Getting tough on crime often means getting tough on the poor, the troubled, and the excluded. In Canada, the consequences of these policies fall most heavily on aboriginal people. In 2007/08 in Saskatchewan, for example, aboriginal people constituted 11% of the population but 81% of new admissions to prison.
The consequences of a preoccupation with punishment can be insidious. For example, in the U.S. some years back, The Atlantic ran a series on the “prison industrial complex” setting out the long-term consequences of expansive prison building, when prisons become a major tool of regional economic development, in effect turning incarceration into an economic good. More and more communities come to depend economically on their local jail or prison. Any attempts to reverse course and possibly close prisons must, then, contend with the inevitable opposition from communities afraid of losing the source of their livelihood. How can this not make us lose sight of the human implications of ever more reliance on jails and prisons?
And let me repeat, most troubling of all, this turn to “tough on criminals” makes Canada a meaner – not safer – place. And how depressingly ironic that we have chosen this direction just when the U.S. Supreme Court has ordered thousands of California prisoners released after decades of prison overuse due to policies similar to those we are introducing here. This Court decision makes reference to Canada as a model because we have avoided the over-reliance on prisons – and the cruel and unusual conditions that seem automatically to follow – without sacrifice to public safety. But that was then. What has happened? Why?
Our greater openness to these “tough on criminals” policies and the reluctance of the opposition to take them on may reflect a more profound debasing of our politics, what the American critic Benjamin DeMott has called “Junk Politics”. In his articles and books, DeMott is not calling for more civility, politer politics; he doesn’t mind a good fight, it seems. His concern with contemporary politics is bigger than that; it resides in its refusal to lead citizens to higher ground, to challenge us, to inspire us to find our better selves. Instead, he says, it panders to our worst sentiments, personalises everything, derides experts and evidence, tells us that we are great as we are, that we have every right to feel morally superior. It divides the world up into good and bad, black and white. Nuance kills. This world, to paraphrase sociologist Orrin Klapp, is destructively divided up into heroes – “hard-working, law-abiding tax payers”; villains – criminals, terrorists and would-be terrorists; and fools – all the elites and so-called experts who are soft on crime and soft on terror. This view gives not much space to the idea of redemption or, for that matter, to compassion, and brooks no debate on what the evidence might tell us or about the costs of punishment.
So what is the answer? For those who think they are choosing safety, ask for the evidence and the costs and risks. For those grateful that the Bill is not even worse, do not wait to get engaged. This tough on criminals beast just gets hungrier the more we feed it. As if to remove all doubt, the Ontario Conservative opposition just proposed that we introduce chain gangs and proudly puts punishment at the centre of its policies. And for those who wonder what’s the point, the Government has a majority, there is nothing we can do, how do we change the conversation if we won’t engage. Our silence, for whatever our reason, is part of the problem.
And in the end, in the name of safety, we are less safe. In the name of democracy, we are less free. And in our refusal to have the debate, to move beyond our prejudices, our fears, our anger, we make Canada a meaner and smaller place.