According to some Conservative senators and many victims’ groups appearing at the committee hearings into Bill C-10, Canadians have lost confidence in the judiciary. Mandatory minimum sentences (MMS) are supposed to restore this confidence by forcing judges to hand down stiffer sentences. To this end, Senator Lang stated today that Parliament must provide a “moral compass” not only to offenders, but to the judiciary, regarding sex offences “so that they know that this is a very serious offense.”
There are two glaring problems with claiming C-10 somehow represents the popular will. The first is that it’s false.
Citing the Department of Justice’s own report, Graham Stewart, former executive director of the John Howard Society, told the senators that for Canadians, the number one principle of sentencing should be rehabilitation. Furthermore, the same report states that over 75% of Canadians are confident in our criminal justice system.
This brings us to the second problem; justifying legislation with Bill C-10’s purported popularity. To illustrate this problem, Graham Stewart reminded us of the disastrous effects of another popular policy: Aboriginal residential schools.
Mr. Stewart characterized residential schools as the worst crime in Canadian history. Senator Frum countered, acknowledging that residential schools were indeed horrific, but that “the government didn’t rape anyone,” and that it will not be the government raping anyone with Bill C-10 either; rather, the government will simply be ensuring that convicted offenders receive jail time.
The problem with Senator Frum’s view of the matter is that both residential schools and Bill C-10 set up an institutional capacity for the abuse of authority. C-10 will force judges to dole out arbitrary sentences, as well as giving the Correctional Service of Canada more latitude to administer unjust punishments to those in custody.
With such horrific, long-lasting results, why were residential schools so popular for the Canadian public at the time? They promised to educate the residents and improve their lives. They couldn’t know the intergenerational trauma that would result.
But in the case of MMS, we do have experience to draw on that should prevent us from committing such a mistake again. As Mr. Stewart submitted to the committee, in 1974 prior to implementing MMS, the US had a prison population of 149 per 100,000 people. In Canada it was 89 per 100,000. The difference was significant then; however, 40 years later that difference is staggering. After implementing MMS, the US prison population jumped over 400% to 730 per 100,000. In Canada 118 people per 100,000 are currently incarcerated, an increase of 33% since 1974 according to Mr. Stewart’s figures.
The result of MMS in the US is a human rights nightmare, with entire generations of people being consigned to the equivalent of a human garbage bin. In the US, MMS has targeted the most vulnerable in society, with 1 in 9 black men between 20 and 34 incarcerated. Over half of these inmates are in prison on drug charges. Our system is already going in that direction, with a disproportionate amount of Aboriginal people, women, people with mental illness, older people, and people with addictions in prison.
The point here, made by both Jackson and Stewart, is that the state’s powers to detain people in the service of public safety must be balanced by respect for human rights.
And while some may not have any concern for the rights of prisoners, respecting their human rights while incarcerated is essential to public safety. There is a chain of causality from increased prison crowding—already an epidemic in Canada, with some provinces at over 200% capacity, that will only be exacerbated by C-10—through to recidivism.
Furthermore, increasing incarceration rates, regardless of the kind of offence, increases the use of injection drugs and thus the rate of blood-borne disease among prisoners, nearly all of whom will one day be released into the population.
Beyond MMS, the legislation imperils democracy by undermining human rights in prison. The bill replaces the requirement that corrections officers use “least restrictive measures” to control inmates with “appropriate measures.” According to Professor Jackson, the requirement to use the least restrictive measures in controlling inmates is enshrined in constitutional law through the Oakes case, and was meant to amend the horrific conditions faced by prisoners in Canada in the 1970s, which itself resulted in a wave of prison riots and hostage taking. One can only wonder what decreasing standards for punishments in prison, coupled with an increase in overcrowding, will mean for the prison population.
We have heard so much evidence put forward by legal experts that nearly every part of Bill C-10 will be the target of a constitutional challenge.
In much the same way that this bill will create a crime problem in Canada where there was none, the unconstitutionality of these supposedly popular measures will likely result in the Conservative party spinning more rhetoric about judicial activism, thus fabricating the very lack of confidence in the judiciary they are using to justify the bill itself.
In painting MMS as a panacea to Canada’s crime problem and ignoring the impact of prohibition on the health of Canadian society, the Conservative government has blinkered us to real alternatives and made judges somehow the enemy of justice.
