08/01/2011 11:17 EDT | Updated 10/01/2011 05:12 EDT

Tough on Crime Bill Is Tough on Us All

It is simply not a socially and economically healthy policy for society to say once a person is found guilty or pleads guilty, that we must, "throw the book at them." Also, we should also not lose sight of the benefit of a simple concept: mercy.

The last time Canada's crime rates were as low as Statistics Canada says they are now, The Sting and American Graffiti played at the movies; Pink Floyd's Dark Side of the Moon ruled the airwaves and M*A*S*H was tops on TV.

Putting aside the fuzzy pop culture context, was 1973 a safer time to which we should aspire? It seems that's what Prime Minister Stephen Harper thinks, at least in the abstract sense. But, we're already there according to Stats Can's annual survey of police-reported crime.

The volume of criminal activities fell by five per cent between 2009 and 2010 to the lowest rate since 1973, continuing a 20-year nosedive in the national crime rate, says the survey.

In short, it's as safe now as it was then... Yet the Conservative Government is forging ahead with this omnibus crime bill this fall, bundling up at least 11 pieces of delayed crime legislation under one umbrella and vowing to pass it STAT. It is a curious disconnect between political ideology and reality. Not to mention a flagrant disregard for taxpayers' money.

It is important to note that this legislation is going to have a broad and significant impact on sentencing across the country and is being foisted upon a criminal justice system that is already incredibility anemic in funding. Currently, there's not just a hiring freeze in the criminal justice system but a downsizing of contract positions. The Crown is not hiring new prosecutors, but letting go people on contract, with a corresponding decrease in support staff. In addition, the infrastructure of the criminal justice system is in dire need of updating, especially in Toronto, and any new courthouse development plans are either scrapped or on hold for many years. The expected changes will add additional stress to an already fragile system without putting in the necessary funding and infrastructure.

While a number of important issues arise from this omnibus bill, the spectre of imposing mandatory minimum sentences for a slew of offences is particularly onerous. Harsh sentencing does not deter future crime. I believe many crimes are driven by a myriad of factors none of which has anything to do with rational thought -- a careful balancing in the offender's mind of what punishments may await them. Under the criminal law there are sufficient sentencing laws in place to hand down harsh sentences when the facts call for them. Sentencing law has evolved upon a foundation of careful and thoughtful analysis with the interplay of good advocacy and a responsive and enlightened judiciary.

Bill S-10, which is expected to be included in the omnibus bill, would impose mandatory penalties for various drug offences. For example, production and/or possession of five marijuana plants for the purposes of trafficking, coupled with a number of factors, would result in a mandatory six-month jail term. Given that scientific research clearly has established that there are medicinal benefits to marijuana, one must seriously question the utility of this type of sentencing.

The reigning policy of the government on sentencing is an endorsement of a lack of faith in the judiciary to arrive at appropriate sentences. The government's argument that one victim is one too many, regardless of what the statistics indicate, is not a foundation to build a healthy and progressive criminal justice policy on. The law must be flexible and able to be responsive to the factors of each case and to carefully balance the interests and principles involved in sentencing. In addition, the reality is that hard sentencing does not prevent crime, but we do know it will unfairly punish many who do not deserve such harsh sentences and overburden a system that's already struggling to operate within a chronically underfunded regime.

Minimum punishments only hit those whom are the marginally criminal or the first-time offenders, who could be more effectively dealt with through more thoughtful and rehabilitative focused sentencing. Many people charged are often caught up in the system as a result of unfortunate circumstances. Or, in certain instances, for those who are engaged in activities that they personally do not believe ought to be subject to criminal sanction, such as the use of marijuana. Mandatory minimum sentences do not hit the hardened criminals. This type of offender will receive serious sentences regardless of the mandatory minimum.

We should also not lose sight of the benefit of the simple concept of "mercy." It is incredibly easy to paint all crimes and hence all offenders with a broad brush -- "Don't do the crime unless you're prepared to do the time." This prevails until you or someone you know is charged. On occasion, a freshly accused person will wonder, how can this happen? And facing mandatory minimums, when a judge's hands are tied with respect to sending you to jail, at least for a minimum amount of time, can be incredibly crushing and unfair when otherwise a judge might have meted out a lesser penalty after hearing mitigating circumstances.

It is simply not a socially and economically healthy policy for society to say once a person is found guilty or pleads guilty, that we must, "throw the book at them." There are spin-off effects not just for the individual but the community at large, which do not advance other societal interests. Many first-time offenders or those who are, as noted above, the marginally criminal will not be able to return to being productive citizens if they receive a mandatory period of jail. Do we as a society really want to take an individual, who is for example working, and throw them in jail, hence ruining their chances for continuing to be a productive citizen, when another option could have been pursued that would promote responsibility in the offender, deal with restoration to the community, yet maintain their ability to continue to work and not become a burden on the state? Instead a sentence must be crafted to the particulars of the individual, balancing the particulars of the case, and the various principles at play, including what promotes our societal values and realities.

Judges generally work very hard at addressing all of the various principles at play in a case, in order to arrive at an appropriate sentence. Mandatory sentencing will remove from judges the power to engage in what judges are supposed to do -- look at all the facts and arrive at an appropriate decision. And our system has built-in checks and balances. A decision can be appealed.

Ironically, the flip side of this legislation will be an increase in trials and possibly acquittals, which will cost more taxpayer dollars, not to mention the costs associated with increased levels of incarceration, which is already high in Canada when compared to other Commonwealth countries or other western democracies.

We generally have a responsible judiciary and if we trust them enough to appoint them, why can't we trust them with meting out appropriate sentences? We have much to learn from the American experience. The backlash against the sentencing guidelines and the swing back to a more enlightened approach only serves to punctuate the need for us to remain measured in our approach to criminal justice issues.

The politically popular "tough-on-crime" stance, which unfortunately many political parties espouse from time to time, must be revisited with a more flexible holistic approach in mind, especially given that Canada is still struggling with our economic recovery and while other legitimate interests like health care and education are legitimately competing for money.

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