A Bad Day: What Now?

C10, the omnibus crime bill, passed third reading and is now over to the Senate for what is supposed to be sober second thought.  The vote could only have been a depressing anticlimax for the many Canadians who were fighting to stop or amend this legislation.  And the implacable inevitability of its passage must surely lead many to ask, ‘why bother, what’s the point?’

This question takes on added poignancy as we read with increasing frequency articles describing the relatively unconstrained power of the current majority government to do as it pleases, impervious to opposition voices or contrary evidence.  I was watching Jamie Watt on CBC explaining that Canadians were turning the page on the crime issue (and, for that matter, Kyoto) and so, the message goes, it’s time to get over it.

Well, maybe not.  Thankfully many are not willing to “get over it”. How heartening, for example,  to hear Leadnow.ca announce that they were simply regrouping for the next stage of their campaign for better justice policy.  So, here are some reasons not to turn the page, instead to continue the fight.

1) Those who spoke to Parliamentary Committees, wrote letters and op eds, called their MPs or took to the streets have made a difference.

All the opposition parties opposed this bill, rejected the smears that they were “soft on crime”, and focused on public safety rather than easy politics.  It has not always been so. And that means that the options are finally being put before Canadians, options for a Canada that is safer, not meaner.

Premiers, whatever their views on the bill, are demanding a more respectful federalism where they – who must administer the legislation once passed – should be engaged at the outset so that they can bring their views and experience to bear.  And several are arguing that they should not have to reallocate money – say from health and education – to pay for the costs of more incarceration and more prisons.

And through the efforts of dozens of organizations, many more Canadians are now paying attention.  And that can only be a good thing.

2) The process is not over.

Whatever one’s views of the senate and its reform, that institution has often played an important role in bringing a reflective, evidence-based perspective to bear on proposed laws.  Because the members do not face reelection,  they are in a good position to avoid the worst excesses of junk politics where pandering trumps the long-term interests of Canadians.

We know that there is a remarkable consensus among the experts here in Canada and more broadly that aspects of the proposed legislation will make things worse and will certainly divert money better spent on prevention, education, rehabilitation where possible, restoration and help to victims,  and the safe reintegration of offenders into the community.

Of course, we can all do the math.  A Conservative majority in the Senate  tells us that the bill will pass, yet again, with the same anticlimax we saw earlier this week.   But the Senate does have a job to do and there is definitely work to be done.  Let’s hear the evidence, the experts, the risks, the costs.

3) This legislation is transformative as it puts punishment and prison at the centre of our criminal justice system.

This has never been the Canadian approach; our balanced justice policies have always focused on safety and justice – and the best evidence of what works.  Such a change  in direction should never happen without a vigorous debate – a good fight.

That’s all the more important because as we have seen in the U.S., this punitive approach leads to more of the same. It feeds our fears and, when we see that we are no more safe, rather than reverse course we opt for even more imprisonment, even tougher sentences.  This beast, the more you feed it the hungrier it gets.

In the U.S., state after state is trying to reverse course but that is no easy task once you have built and filled all those prisons, once you have created a permanent underclass on the one hand and gated communities on the other.  We do not want to go that way.

4) In fighting this kind of legislation we are also fighting for a different kind of politics.

Who of us isn’t  sometimes afraid, especially for our kids, often angry and horrified at some of the terrible crimes we see on the news, and moved by the suffering of victims and their families.  And we know our own frailties, that we can confuse justice and revenge, that our anger can blot out the evidence, that we sometimes lash out and act against our own best interests.

Fighting against this punitive bill is fighting against a politics that exploits our frailties  rather than appealing to what is best in us.

5) And fighting against bad policy is good for the soul.


73 Responses to “A Bad Day: What Now?”
  1. franc black says:

    Well Mr. Himelfarb, your liberal elite circles and their media messages of three decades pissed off so many people that the Conservatives got a majority. The pendulum has swung back. Next time the champagne socialists have power, please remember this current political climate.

    • Beijing York says:

      You seem to be confusing liberals and socialists, franc. The socialists have never had power in this country and the social democratic NDP has had provincial power, past and present, in Saskatchewan, Manitoba, BC, Ontario and now Nova Scotia. You seem to be putting anybody left of the hard right Conservative Party, including traditional Progressive Conservatives, into same political bucket.

      That kind of thinking, lumping us all together, is what’s going to make the challenge of continuing to fight the changes introduced by the Harper government much more appealing. The less than 40% who actually voted for him and his MPs don’t necessarily even support much of what is being done in our country. The opposition parties did poorly in working together in three consecutive minority Parliaments and Harper stoked the fires of divisiveness while behaving undemocratically. But as Alex pointed out, we are now seeing ALL opposition parties working in concert to reject Harper’s vision and inform Canadians of the dangers posed by such legislation as the omnibus bill.

      As for the media, they are far from liberal or socialist. They have given Harper free reign and only now that he is ramming legislation through without barely debate, let alone full disclosure of all the facts including costing tax payers’ burden, are they starting to raise some concern. So next time the pendulum swings back, I will be even more vigilant of those in power and the media to ensure we never experience such an extreme departure from what was the norm in our political landscape.

      Thank you Alex for raising hope in what seems like such a dismal political climate. Our hands may be tied but our minds are free. I think the Occupy movement has also been inspirational and the topic that has been ignored for so long, the growing gap between rich and poor, is finally being discussed in the mainstream media.

  2. Jo says:

    It’s hard not to want to flee the country for a less backwater one…

  3. John Turnbull says:

    “A Conservative majority in the Senate tells us that the bill will pass, yet again”

    Yes, there is a Conservative majority in the Senate, but the Harper Government is *not* a conservative government in ideology. It has a Reform/Alliance ideology. Consequently, we must email and phone and remind all conservative Seniors that they need not show allegiance to the Reform/Alliance Harper Government. Those ideologies are not classical conservative ideologies.

    The Harper Government is Conservative in name only – not in actions.

  4. Norma says:

    @ Jamie Watt – It’s not time to get over it !
    Bill C-10 needs more work to achieve the goal of making us safer.
    We need to be building “Mental Health & Addiction Centres”,not more prisons.

  5. Klaus Kaczor says:

    You actually forgot to mention that the Senate is supposed to be chamber of sober second thought working for the benefit of Canadians, not an ideology besotted circus of yes-men beholden to the “Harper government”.

  6. Avril Orloff says:

    Great article, and a heartening reminder not to give up when the going gets tough. I just hope we still recognize our great country by the time the Harperites are through with it…

  7. Klaus Kaczor says:

    That is why my eventual victory in court concerning the use of the neutral healthcare Act which is outcome based, will taste that much sweeter. I am the first in Canada to challenge the mis construction of the CDSA which divides the same class of people (substance users) arbitrarily. Under the principles of fundamental justice they all must be treated equally before the law. There are no exemptions for any substances which when misused can harm society, including alcohol and tobacco. The Minister can exempt any substances for any reason. This is not a prohibitions Act, and, especially not a vehicle to express political ideology thereby waging a war on some people while giving a monopoly to the most dangerous drugs. Please help support my efforts. I am self represented and very capable. It is my goal to make Canada a safer place where separate but equal laws like the Jim Crow laws don’t cause violent crime and lawlessness while laying down the foundations of a police state at great cost to us. We must stay motivated and never give up to allow this man to perpetrate an atrocity on our country unchallenged!

  8. Thanks for lifting our spirits on what was indeed a bad day. I wish it were possible to “get over it”, but this bill, once law, is going to create more problems which cannot be “gotten over”.

    I especially like Reason #5.

  9. Catherine Latimer says:

    Alex: I couldn’t agree more. Organizations, like the John Howard Society of Canada, which has been lampooned for simply advocating for effective, just, and humaine responses to the causes and consequences of crime, sense a change in the winds. More and more people have been persuaded by the evidence and are speaking up for a more effective, fairer, and less mean approaches to achieving our shared objective of reducing crime than is proposed in Bill C-10. The engagement is really heartening and many individuals, groups, and coalitions are mobilizing. Many of us will continue to advance principled, evidence-based justice and corrections policy and look forward to participating in a citizens assembly and with others who share these goals. Thanks for your leadership on these issues, Alex. Catherine Latimer, John Howard Society of Canada

  10. Norma says:

    Just a little info on Jamie Watt:Jaime Watt – Wikipedia, the free encyclopedia

    “Jaime Watt is a Canadian political strategist who was most notable for playing an important role in the Progressive Conservative Party of Ontario’s two election victories under the leadership of Mike Harris.[1]

    Why does Jamie support delayed pardons?

  11. Brendan Lorimer says:

    Hi Alex,
    My name is Brendan and I am currently attending St. Lawrence College in Kingston, Ontario where I am studying social work. I just finished writing a paper on why the C-10 Crime Bill should not be passed and I wanted you to know that the post you wrote on prison expansion this past May (https://afhimelfarb.wordpress.com/2011/05/29/a-meaner-canada-junk-politics-and-the-omnibus-crime-bill/) was a HUGE inspiration for my paper. I referenced you many times (don’t worry, you got all the credit!). I just wanted to say thank you for this blog and for speaking such powerful and convicting words. Thanks for speaking truth, Mr. Himelfarb, may you continue to be a voice for the voiceless in times like these.

  12. The reliance on over-incarceration and on punitive attitudes dries up the soul of a nation. It will be a sad day for Canada if significant amendments are not made to C-10…May the senators have the courage to raise the real issues!

  13. Carolina Huignard says:

    Great article. Although it’s difficult not to feel defeated, it’s essential not to give into the fear and rhetoric.

  14. Jonathan Rubin says:

    I second my classmate’s comments above, another great article. I would also ask why the provinces- as you mention- haven’t been more vocal in pushing back against legislation that will greatly impact their social and justice ministries? I hope they aren’t waiting for a First Ministers’ Conference on the issue..

  15. Danielle says:

    Majority of Conservatives is a majority of fearmongering.

  16. Bill says:

    Thoughtful and inspiring as always. Thank you for lifting my spirits. I’m reminded that we try to do the right thing because it’s the right thing to do, not because we think we’ll win. We want to succeed but what makes us willing to make the effort is that it’s the right thing to do. Not succeeding is not as bad as not trying.

  17. Sol Chrom says:

    Nasty, stupid, counterproductive, divisive, cynical, and very, very dangerous. But then we already knew that.

    Harper’s been quite open about his intent to rewrite Canada’s entire narrative. It’s baffling and more than a little disheartening to watch the way we let him get away with it. Here we are, faced with what amounts to an existential threat to the kind of country we are, and we can’t even muster the energy for even the most minimal civic engagement?

    It can’t be just the lingering after-effects of tear gas, truncheons and pepper spray. And it’s clear that the battle’s going to have to be fought through extraparliamentary channels.

    And that’s where I start looking for plans that go beyond the hill-by-hill, street-by-street model. While we’re doing that, this bunch is effectively reshaping the very ground on which we’re standing. I’m all for fighting the good fight for the right reasons, but it seems to be that we’ve been doing that — and without much success. If anyone’s got any ideas about how to counter this guy, not just tactically but strategically, I’m all ears.

    • himelfarb says:

      Hey Sol, always pleased to hear from you. I tend to an irritating degree of optimism but I believe that some good things are happening. Fit the first time in years the opposition is fighting these awful measures. Some provinces are speaking up. The Occupy movement has people talking about inequality and tax increases, about fairness and social justice, all taboo topics for decades. Groups like Leadnow are growing and growing strong. Of course, it sometimes seems so little, and so frustrating. But I am put in mind of how the right invested decades in flogging their views and I remind myself that some combination of principle, passion and perseverance is needed. Have a read of this if you haven’t already. (you might be interested too Klaus.) Here is the link https://afhimelfarb.wordpress.com/2011/02/14/crazy-ideas-overtons-window-and-the-political-imagination/

  18. Klaus Kaczor says:

    “If anyone’s got any ideas about how to counter this guy, not just tactically but strategically, I’m all ears.” The all ears part is important. When I ran for City council here in Vancouver I worked for myself and for someone else reviving the old idea of “Town Crier” The message put into into short sound bites can never be ignored once sung out on crowded streets. It is surprising how much one can influence people in this type of advertising which amount to vocal broadcasting that can’t be tuned out. And it is surprisingly inexpensive, gives talented people employment and creates a significant buzz in an ecologically sound way. Flyers are expensive and pollute and extremely ineffective. There is something about the human voice sending forth a message especially if it can be linked to a website. I need a job. Serious political action is not free. Put your money where your mouth is. I have spent a serious amount of money trying to create an interactive business for these types of advertising messages which were actually the first form of political marketing. One in every major city in Canada and you will not see another Conservative government next time and a sharp backlash to their policies immediately.

  19. Nadia says:

    I was having a very bad day (and weeks, months, etc.) and then a mutual friend told me to read this piece. You have energized me enough for me to continue to fight not just bad but evil policy.
    Thank you.

  20. Mark Hammer says:

    One wonders what role the judiciary will ultimately play. Although minimum sentencing guidelines remove some choice from their menu, it still permits them to use ONLY the minimum sentence, and make a point of not going beyond. I’m certainly not suggesting that judges place the public at risk just to make a point, but the manner in which they ultimately implement those changes to the law is itself a comment on, and potential criticism of, the law. Stated more bluntly, it all ends up going through judges anyway, and that fat lady hasn’t even gone through her vocal warm-up exercises, let alone sung.

    • himelfarb says:

      But don’t underestimate how much these imposed minimum sentences change things as minor and first-time offenders and offenders who need different kinds of intervention will get caught up in this enlarged prison web. Add the toughening of young offenders provisions, the restricted use of house arrest, and the range of other changes focused on punishment and prison, I wouldn’t be too sanguine Mark. We have seen how this plays out in the US; they have paid and continue to pay a huge price for these misguided policies: the creation of a permanent underclass, recidivism, huge costs that would be better spent on education, prevention, restoration, reintegration. Meaner, not safer captures it.

      • Mark Hammer says:

        I’ll certainly defer to your much greater knowledge about such matters, and I agree that the minimum impact of the changes in law is far from benign or inconsequential. But while the judiciary are not nearly as “activist” as some would portray them, there have been many high profile cases in recent years of judicial “obstinacy” in the face of what they perceive as untenable circumstances. It’s not beyond the realm of possibilities that a judge could decide that, in a given case of a young offender obliged to be double-bunked with a more serious adult offender, due to a shortage of “room at the inn”, that the conditions of sentence represents an excessive punishment that is not supportable by the charter. After all, the likelihood of building and staffing the facilities anticipated (by folks like DM of Corrections Don Head, not just advocacy groups and whiners) AND meeting the deficit-reduction targets on time is not exactly high. Something has gotta give, and my money is riding on the facilities being slower in coming than the deficit reduction; particularly if prevailing circumstances make it harder to achieve that reduction than anticipated. If there is such a predicted pile-up of young offenders and insufficient prison space, I expect the judiciary to do what they are paid to do: exercise good judgment, and make the appropriate stink. Obviously small comfort to those directly affected (young and first-time offenders and their families), but not a completely lost cause.

      • himelfarb says:

        The US Supreme Court found that a prison population at 138 percent of capacity was cruel and unusual. Our pops are higher than that. The courts may well have to deal with this one way or another.

      • himelfarb says:

        And, as you say quite correctly, not a lost cause.

    • Brad says:

      I would suggest that most of the “law reform” (in the sense of positive) that has occurred in Canada over (at least) the last decade has originated with the Judiciary. In all law – not just criminal law.

      No doubt that’s one of the driving reasons for mandatory minimums – legislators being offended by mere Judges having the audacity to think they know what’s better for Canadians than elected representatives – regardless of the actual “knowledge” or experience of the legislators (or Judges for that matter).

      MPs have been elected – to do what they want to do – that’s why they were elected. If the electors didn’t want them to do these things, they wouldn’t have elected them – right? This is so simplistic as to be naive.

      When did standing for election morph from serving the public good and doing what’s right to getting into power and hanging onto it?

      Yes, that’s the norm in numerous dictatorships around the world – but it has never been the norm in Canada – until now.

      Having been closer to the seat of power than I ever have (or will be) Alex, your optimism is an inspiration – it yet gives me hope in what I consider a very dark time.

      The other thing that gives me hope is our Judiciary – they are (which is not well-known) the 3rd arm of our government. They are constrained by “the law”, but they are also the ones that determine the law.

      So even if the majority of the Senate fail to do their duty, there is still hope.

      • himelfarb says:

        Thanks Brad. You are right, we do have some checks and balances to protect us from very bad law – as Bill10 would be. Will the Senate do its job? Would parts of C10 withstand a Charter challenge? Do the sentencing provisions violate the recognized Aboriginal rights to use their own sentencing process? How will provinces implement this law? What worries me most is that if and when this Bill becomes law, all the Canadians who have been engaged in it’s opposition will turn the page. That males it too easy to continue with more such legislation and to do more damage. We need to continue to hear the many Canadian voices promoting public safety, justice, and evidence-based decisions.

  21. Nadia says:

    Unfortunately, Canadian defence lawyers seem to be somewhat less organized as a group than their American colleagues. My hope is that the passage of the Bill of Evil will galvanize defence lawyers to organize and begin a well synchronized campaign of challenging “conditions of confinement” as well as filing more appeals. The “Harper Government” will not be moved by “mere statistics”, research on what works, or appeals for enlightened treatment of vulnerable citizens. A concerted effort on the part of the defence that leads to substantial financial settlements and expenditures, however, may get the attention of a group of people who have mistaken the era of Elizabeth II with Elizabeth I.
    God save my Canada!

  22. Rich says:

    I was born in the States but I immigrated to Canada to get away from the failed policies of a police state that incarcerates more people than anywhere else in the world- and has nothing to show for it but an underclass of criminals well-educated in the art of crime and little else. Canada’s safety and justice approach is exemplary of the our more humane approach to social ills. We must do everything we can do oppose this law and to fight to overturn it!!
    As some commentators have stated, many states in the US are buckling under the weight of these expensive punitive policies, and we can’t let Canada go down that road. We can do better!!

    • himelfarb says:

      Thanks Rich. It is important that people who have seen the damaging consequences of these nasty policies speak out. It’s interesting – in a horrible way – to which many states working now to undo these policies even as we have chosen to repeat their mistakes – and thus far seem unwilling or unable to learn from the evidence, the experts, or hard experience.

  23. himelfarb says:

    Thanks Mark. It is a useful and balanced piece and how pleasing to see evidence being used. Having said that, the article does capture only a slice of reality. The policy analysis is particularly flawed. Certainly it is true that we have never been much good at shifting dollars between sectors but that misses the point. Today we are in the position that the more we spend on prison, awfully expensive and ineffective, the more we actually CUT other things that are crucial for preventing crime – community crime prevention, mental health services, education, social services. And the more crowded the prisons, the less rehab occurs, not to mention the cruel, inhuman condition and their contribution to criminality. (And the authors miss out on the very important demographic and socio-cultural factors.) Nonetheless, as always you force us to think these things through – and always to look at the evidence. Thanks.

    • Mark Hammer says:

      I ask this question very naively. Crimes are committed when they are committed, but the size of the prison population is only affected *after* someone is sentenced, and that can sometimes take a while, particularly for more serious crimes where there is greater motivation to avoid a lengthy sentence. Does the lag between when the crimes are reported, and when the number of inmates is affected, mislead us about the relationship between incarceration rates and crime? Like I say, I’m naive at this. It may well be a notion that has been discussed at length and dismissed already.

      • himelfarb says:

        One of the hidden horrors of criminal justice in Canada is that we are among the world “leaders” in the number of people in prison on remand, that is, without any conviction. That means that for far too many there is no lag whatsoever. Changes to the law in the last session have made this even worse.

  24. Graham Stewart says:

    We should not give up on the Senate too quickly. While it is rare for the Senate to reject a Bill thatt does occur from time to time. In fact, the last time that occurred it was a Liberal dominated Senate that rejected a Liberal criminal justice bill that would have prohibited prisoners from profiting from publications that exploited their crime.

    Of course the Senate generally defers to the House but the justification for the Senate to reject a bill is when a bill was not adequately considered by the Commons and the measures are broadly opposed by the public. Certainly there is a good case to be made that this bill was not adequately considered. Public opposition seems to be growing even now.
    Let’s look at the numbers:
    • Liberals = 41
    • Conservatives = 54
    • Independent = 2
    • Progressive Conservative =1

    To defeat the Bill would require 50 votes ( 99 Senators less the speaker = 98/ 2= 49 +1). All of the Liberals appear to be intending to oppose the Bill. In addition there is reason to think that there are some others who might also oppose it. The Independent and Progressive Conservative Senators look to be serious possibilities. Several Conservative Senators have already stated their opposition.

    . I suspect that some of the Senators from Quebec and the North might have difficulty supporting the Bill. Amongst the Conservative Senators only 37 were appointed by Harper Of the remaining Conservative Senators, some of whom were appointed by Liberal prime ministers, many have been progressive on social policy issues.

    I don’t think it is optimistic to think that 45 Senators oppose the Bill today. That means that if only 5 more Conservatives can be persuaded to oppose the Bill it will fail. If the Bill were to undergo substantial amendments the number of Conservative Senators who might side with the amendments would likely be greater. Rejection would be preferred to amendments but in the end either would likely have the same effect.

    One Senator has noted that the mail he has received on Bill C-10 already exceeds what he has received on any matter in the past.

    We must not assume the Bill is going to pass in the Senate. Those who are concerned must contact any senator whom they think might be susceptible to persuasion. This legislation, with so many sub-issues (mental health, Aboriginal, additions, mandatory minimums, lack of proper consideration , costs etc.) that virtually anyone can find something to dislike. The very fact that it is such a large omnibus bill might be its fatal weakness.

    Already some Conservatives have split ranks. It is not at all infeasible that with some persuasion five more might do the same. Everyone must do their part now.

    • himelfarb says:

      As always Graham, right on. The Senate does have a job to do here. And as you day, this legislative proposal, massively consequential, contrary to the evidence and experience, and with substantial public concern.

  25. Brad says:

    Unfortunately, because of mandatory retirement at age 75, one truly outstanding Senator will not be there for the final vote on C-10.

    Safe Streets and Communities Bill
    Second Reading—Debate Continued
    On the Order:

    Resuming debate on the motion of the Honourable Senator Runciman, seconded by the Honourable Senator Stewart Olsen, for the second reading of Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts.

    Hon. Tommy Banks: Honourable senators, I will not have the privilege of voting on Bill C-10, which I very much regret. I know it would not have made any difference. Nonetheless, you should know that I would have voted against it.

    Senator Comeau: Absolutely, we know that.

    Senator Banks: I know you know that, Senator Comeau. Thank you.

    I wish to place on the record the reasons for which I would do so. There are many good provisions in this bill, but they are far outweighed by the bad ones.

    I would vote against it because it is not susceptible of mere amendment or correction. That is because the parts of it having to do with law enforcement and sentencing are based on a wrong premise. They are based on the premise that most crime is a problem of law enforcement and that the solution, therefore, to most crime is more and stronger law enforcement and more and stronger prison terms. However, that is not the solution to most crimes.

    That is like thinking that the solution to most cancers is more and stronger pain suppression. That is not the solution to most cancers. There are cancers that we have not yet learned how to treat properly and for which our only recourse is pain suppression, but that is not true of most forms of cancer. There are crimes and criminals about which we cannot seem to do anything and for which we have no recourse other than to imprison. There are people for whom we must simply throw away the key; but that is not true of most criminals.

    The truth, the facts, the results of research and the science in this question are all counterintuitive. It would seem to us logically and on our natural intuitive first responses to crime and to criminals that punishment is the answer. That is a normal human reaction. It seems patently evident that if we put people in prison then they certainly will not offend against us while they are in there, and that the longer we keep them there the more likely they are to learn their lesson and the less likely they are to reoffend.

    That is an entirely understandable, intuitive and human reaction.

    It also assuages our sense of outrage by the application of a little bit of revenge, a little retribution.

    Revenge and retribution are also entirely human, understandable and intuitive and sometimes, as in the case of people like Paul Bernardo and the late Clifford Olson, most of us believe that they should never be released from prison.

    However, most people, the vast majority of people in our prisons, are not like Clifford Olson or Paul Bernardo. Most of the people in our prisons will get out. The longer, harsher sentences only mean that they will stay a little longer and get out a little later, and our intuitive thought is that staying there a bit longer will lessen their attraction to a life of crime.

    We also have natural reactions when we read or hear that a conviction for a particular kind of crime has led to a sentence the nature of which we simply cannot understand.

    How, we ask, could a judge have possibly arrived at the conclusion that this is an appropriate sentence for that crime? Usually the short answer to that question is given when the layers are pulled back and examined and the circumstances and situations become known, when we hear or read the evidence — when, in other words, we know the facts.

    Most of our public outrage comes without the advantage of knowing those facts, without hearing that evidence first-hand because we are not there in the courtroom hearing and seeing what the jury and the judge hear and see. That is why we have juries and judges, to pay the kind of attention and devote the kind of time that the rest of us cannot to the consideration of facts and evidence in a trial.

    Judges are not perfect. Juries are not perfect. However, they are fundamental to our system of law, and when we abrogate — as this bill seeks to do, and others before it have done — the discretion of judges and of juries when it comes to sentencing, we are abrogating justice. We are merely changing the law, but we are short-changing justice.

    If we end up having, in the Criminal Code, a series of tables — for crime A, the punishment is found in Table 2 — we will not need judges at all when it comes to sentencing. A clerk can just run his finger down the page, push a button on a calculator — crime A results in punishment No. 4, and Bob’s your uncle. Next!

    Senator Mitchell: They could get an iPad.

    Senator Banks: An iPad would do it very nicely.

    Judicial discretion — we do not need that. It is a thing of the past. Just refer to this handy-dandy chart and calculate your sentence. Common sense, careful thought and consideration — never mind all that; just enter the code for the crime in this little machine and it will digitally display the appropriate sentence in bright, large, easy-to-read LED letters. It is so simple even a child can use it.

    Honourable senators, our intuitive concept of the effect upon crime and criminals of longer and harsher sentences is wrong. This is not merely an opinion. It is a demonstrable, provable, mortal fact that it is wrong.

    I know the minister said we do not govern by statistics, which is saying we do not want to pay any attention to the facts, but we should pay attention to the facts. An examination of statistics — not concepts, ideas, reactions or theories, but statistical facts — from any jurisdiction will show irrefutably that longer prison sentences result in higher rates of recidivism. That is a statistical fact. It is cause and effect, plain and simple.

    It is a counterintuitive fact, I recognize, but the fact is that the longer we keep people in prison, the more likely they are to reoffend when they are released. There is no evidence to contravene that; it is incontrovertible. That is not a theory; it is not wishful thinking; it is not Pollyanna-like viewing through some rose-coloured glasses. It is a simple and incontrovertible fact.

    In this country and in other countries, longer prison sentences, very much including minimum sentences, do not result in less crime; they result in more crime. We have had evidence presented here, and the committee will hear evidence on end from our American friends who are saying, “We tried that. It does not work. Please do not go there.”
    Longer and harsher prison sentences, and particularly minimum sentences, result in more efficient crime perpetrated by better-trained, better-connected and more resentful criminals. Longer, harsher sentences are not the solution to anything. Longer, harsher sentences are part of the problem.

    Some Hon. Senators: Hear, hear!

    Senator Banks: I commend your attention, Honourable senators, to this report. Senator Nolin referred to it yesterday in his very kind remarks upon my retirement. This is one of the best of the best reports — and the Senate has done many good reports; this is one of the best of them. It is in five volumes. It is 900 pages long, and it is the result of 18 months of careful study in a committee of both sides of the house, led by Senator Nolin, the Special Committee on Illegal Drugs.

    During the 18 months or so of making this report, its members, of whom I had the honour to be one, heard evidence from distinguished penologists from different countries and jurisdictions in this country, in the United States and elsewhere in Europe. We learned facts about imprisonment and its effects upon crime and criminals that most of us had never heard before. We had never heard anybody present or explain those facts, and they were counterintuitive to what some of us believed. It removed the scales from our eyes. It showed us that our intuitive human views of crime and punishment were wrong.

    I invite Honourable senators to get this report, to read it and to read in it the testimony given by Tim Boekhout Van Solinge, who is a lecturer and researcher in criminology; of Neil Boyd, Professor of Criminology; of Francoise Dubois-Arber of the Swiss Federal Commission for Drug Issues; of Steven Van Hoogstraten, Director of International Criminal Affairs and Drug Policy; of Georges Dulex, Head of the Canton of Zurich Criminal Police; of Serge Brochu, Director of the International Centre for Comparative Criminology; of Professor Peter Cohen of the University of Amsterdam; of Jean-Michel Coste, Director of the French Monitoring Centre for Drugs and Addictions; and many, many other witnesses before that committee on questions of penology, among other things.

    In fact, honourable senators, I invite you to read every eye-opening word of Senator Nolin’s report. All of us learned, including from hearing from what the United States’ Drug Czar told us; what policemen from across the world told us; what doctors, researchers, statisticians and scientists told us; and what convicted criminals told us. What they told us was that retributive punishment does not work; that longer and harsher prison sentences do not work for those criminals who will be released into society; that the vast majority of people that we are putting in jail are the low-hanging fruit, while the people who actually deserve to be imprisoned are not; that longer and harsher sentences are a guaranteed barrier to reclamation and a guarantor of increased incidence of repeat offences.

    Please ask Queen’s University Professor Nicholas Bala. Ask Judge John Creuzot of the Dallas County Court, who, when asked the question, what is wrong with mandatory minimums, replied:
    Nothing, if you don’t mind spending a lot of money locking people up and seeing your crime rate go up. Nothing wrong with it at all.

    Ask right-wing Texas Republican Jerry Madden. He said:

    It’s a very expensive thing to build new prisons . . . but if you don’t build ’em, people will come up with very creative things to do to keep the community safe, and yet still do the incarceration that’s necessary.

    Or ask Tracy Valazquez, Executive Director of the Justice Policy Institute in Washington. She said:

    If passed, C-10 will take Canadian justice policies 180 degrees in the wrong direction, and Canadian citizens will bear the costs.

    Look, please, at the Simon Fraser University report by Alana Cook and Ronald Roesch, who examined data from other places in the world that have already put into place some of the things that are proposed in this bill. According to their report, many of the changes that we have already and wrongly made in the Criminal Code, and many more that are proposed in the present bill, have the effect of increasing prison terms. However, two meta-analyses of studies show that longer prison terms result in criminals being more likely to reoffend upon their release.

    Will somebody please explain how that is fighting crime? These things are not guessing. They are not supposition. They are not looking through bleeding-heart, rose-coloured glasses. These things are incontrovertible, unquestionable, demonstrable facts, honourable senators.
    The one thing this place has as its great advantage is to be able to deal with the truth and with facts, notwithstanding what people down the hall say. We used to do that here a lot, and we should do it in the case of this bill.

    Our American cousins, who were unaware of these facts at the time, embarked down this road — down the road of “We’ll show ’em. We’ll impose longer and harsher prison sentences.” They went down that intuitive road several years ago. They have found that it was the wrong road. They have found that it does not work and are trying to deal with the then unforeseen and disastrous consequences of having gone down that ill-considered road. They are trying to repair their system of law enforcement and imprisonment. They have tried that road, the road that is set out in this bill and its predecessors, and it has failed them. Despite the indisputable facts and despite the experience of our neighbours and despite the unquestioned success of other practices, policies and attitudes in systems other than ours, we are setting off down the same road.


    Honourable senators, I request five minutes to finish my remarks.

    The Hon. the Speaker pro tempore: Is it agreed, honourable senators?

    Hon. Senators: Agreed.

    Senator Banks: Honourable senators, it does not work; it is the wrong road. The inevitable consequences cannot be characterized any longer as unforeseen because we are looking them straight in the eye, and yet we are inexplicably determined to touch that hot stove, that wet paint. Despite the sign that reads, “Danger Do Not Go Down This Road,” we are going down that road. Protestations that this bill and its ill-advised antecedents are different from the U.S. road are simply groundless — they are one and the same. This bill takes us even further down that road. We have already started down it, despite the best advice from people who know the facts and have the experience, knowledge and expertise.

    We seem bent on doing the wrong thing because it is popular on its surface, plays well to the madding crowd and caters to an uninformed and ideologically based view. That is also intuitive, but it is an intuition that seems to be right. Do not look at the facts too carefully and follow an ideological point of view that plays well and you will get votes. Never mind that we are proposing a solution that does not work, the people love it. We have heard the minister say over and over again that the people voted in the last election for a government that promised to lead them down that road, and that this government has a mandate to take the people down that road. The tragedy is that the government is determined on this course despite knowing better; and the minister does know better because the evidence and experience of other jurisdictions is irrefutably plain and true.

    Honourable senators, sometimes the right thing is not popular and can be a hard sell. Sometimes in this place, we have the luxury of a degree of independence from retail politics. In this place, whether we like it or not, at least for the moment we do not need votes. Whether we like it or not, the Constitution of Canada, as it stands and until it is changed, says that we are not susceptible to being voted out of office. Some may not like that and want change, but until it is changed, that is the way it is, and that is the way it has been for 144 years. That is the way it is today as we deal with Bill C-10.

    More time and attention than on any other question were spent making sure that was so during the Confederation debates; and that is why we are here, honourable senators. In our examination and consideration of this bill, if we apply the facts, care, science and objectivity, as I have no doubt the committee will do, then we will see that the bill is wrong in its proposed sentencing provisions. The very intuitive premise upon which it is based is wrong. It is our bounden duty, honourable senators, to apply those criteria in our considerations. We cannot escape that responsibility. I have to believe that having done so, we will find that the sentencing provisions in this bill are wrong.

    • himelfarb says:

      What a superb speech. Sadly we lose Senator Banks and we recently lost Senator Murray. Both departed with great dignity and speeches that remind us what the best in politics looks like. Beyond narrow partisanship and pandering. (The media are speculating that the Conservatives government is about to appoint 7 new Senators in January.)

  26. Brad says:


    And the message is so straightforward and logical – let’s do what the evidence tells us is the right thing to do.

    Let us be ruled by reason rather than emotion (or worse).

    Let us act based on caring, rather than fearing and hating.

    What about this is so hard to understand?

  27. Mark Hammer says:

    Another question, borne of curiosity.

    To what extent is the citizen sense of “justice having being done” influenced by the nature of the judgment, as opposed to length of sentence. In other words, if offense/offender A receives a 20% longer sentence, but a more mundane and less-vigorously argued, less quotable, judgment, and offense/offender B gets a shorter sentence, but the judgment makes it publicly clear how culpable the offender is, how much harm has been done – essentially that one side is VERY wrong and the other very much in the right – which is the more palatable? Obviously, there would be a threshold, such that even the most ardently-expressed condemnation would not compensate for giving a serial rapist 2 years less-a day. But within those limits, do we know how much of the satisfaction in outcome for victims of crime results from:
    – length of sentence given,
    – time served,
    – qualitative aspects of judgment given

    I’m thinking in terms of a sort of regression model, where any of these components contributes to the sense of justice having been done. Clearly part of the motivation for C-10 is a response to citizen beliefs about justice being achieved (and as Sen. Banks comments so eloquently convey, actual instrumental impact on crime seems NOT to be the impetus, or at least not a very well thought-out one). But perhaps C-10 reflects a mis-estimate of the relative weights of the various elements in the regression equation.

    • himelfarb says:

      Hey Mark. I remember reviewing some research some time back that indicated that Canadians consistently underestimate the severity of sentences actually meted out ie they think the system is more lenient than it is. This is not unique to Canada. Interestingly, some European judges announce their sentences in hours to make clear how serious a sentence of, say, 17,520 hours (2 years) really is. I have also seen research that shows that when people are given more detailed information about an offender and the circumstances of the crime, they tend to be more lenient than they are without such information, that is they fit the punishment to the circumstances, contrary to the intent of mandatory minimum sentences.

  28. Brad says:


    You are correct about the research that shows that if the full facts are given, the majority of Canadians think the sentence is too harsh.


    That is indeed an interesting question. But I think you’ll find that, particularly over the last decade, judgments in criminal cases (indeed, civil cases as well) almost always follow the same format and are rarely so strident as to warrant public outcry. That’s because there are more and more mandatory courses that judges now have to take on how to write judgments (and conduct trials, and conduct themselves as judges)

    I would suggest that it’s the media and how they present the outcome of trials that has the greatest influence in this regard. And again, there is considerable support for that proposition to be found in the literature.

    The other thing that has been found time and again is that when it comes to “closure” for victims of crime, is that the only thing that really has any lasting, positive effect is genuine forgiveness of the offender by the victim(s).

    “Justice” is a very abstract concept, and its meaning literally varies from individual to individual; but the emotions occasioned by victimization (or indeed, victimizing) while perhaps incapable of verbalization are nonetheless quite profound.

    I would suggest that perhaps the primary reason that Restorative Justice practices are so effective in alleviating those emotions is that they actually reflect the human condition at its most basic.

    Humans are driven to love and be loved. That defines us.

    It’s the denial of that being loved that primarily leads, in my respectful opinion, to criminal behaviour.

    Restorative Justice is not about punishment or retribution – it is about healing.

    • Norma says:

      @ Brad,that helps explain why the Prison Farm Program was so effective in rehabilitating offenders.
      Farmers who have some of the prize “Pen Farm” Holsteins bought at auction when Harper closed the farms,said they could tell that cows had a lot of attention & love,

      • himelfarb says:

        Another bad mistake, that closure.

      • Beijing York says:

        I’m glad to see this conversation still going. I wholly agree, Norma. The Prison Farm Program was exactly what restorative justice is about. Reminds me of a documentary I saw years ago of a prison program in the US where inmates were trained to be service dog trainers. The participants loved their assigned dogs and were very proud of their accomplishments and hearing about where their trained dogs were placed.

        Hey Alex, a quick note to wish you and yours much health and happiness this year.

      • himelfarb says:

        All the best to you BY.

    • himelfarb says:

      And thus the approach most sensitive to victims and community.

    • Mark Hammer says:

      Thanks for that, Brad. I have a cousin who is a judge. I don’t normally “discuss business” with her, since it treads on thin ice, but next time I see her, I’ll have to inquire about how she felt she came to be able to write judgments. I am told she writes good ones.

  29. Mark Hammer says:

    Hard for me to imagine that you and Anthony Doob are not regularly in touch, given your respective interests and geographic proximity, but if you haven’t seen this recent piece on The Mark site, you may want to give it a read: http://www.themarknews.com/articles/8125-crime-bill-what-the-senate-can-salvage

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