It may be an auspicious time to be in the construction industry, what with all the new prisons that will be required when the Conservative law and order platform is implemented. With mandatory minimum and consecutive sentencing, no conditional sentences for many offences and the trial of offenders as young as 14 as adults on the docket, we just might pull ahead of the U.S. and Russia in overall incarceration rates if we try hard enough.
According to the Elizabeth Fry Society, in 2000 Canada imprisoned its population at a rate of 118 per 100,000, compared to a European average of 84 per 100,000, and we imprisoned youth at four times the rate that we imprisoned adults and 10-15 times the rate of European countries. We even surpassed the U.S. on youth incarceration, surely a dubious distinction.
While the tough-on-crime agenda may appease a public desire for action, particularly in the wake of rising gun crime, it has vast implications beyond simple electioneering. Alternative models that have been quietly working at successfully reducing recidivism and enhancing community health may now be at risk.
Conditional sentencing is the polar opposite of mandatory minimums. Rather than focusing on incarceration, it is designed to keep some offenders out of jail and in the community. Conditional sentencing became part of the Canadian justice system with the passage of Bill C-41 in 1995, arising from concerns about the overuse of incarceration as a means of addressing crime, particularly as it applied to Aboriginal peoples.
(Parliament recognized that the overrepresentation of Abor-iginal offenders in prisons was systemic and race-related, and that the mainstream justice system was contributing to the problem.)
It would behoove the government of the day to reject populist oversimplification and consider how its law-and-order proposals might impact restorative/alternative approaches, which have proven successful with both Aboriginal and youth offenders, among others (think Toronto's drug court).
Restorative justice operates on the principles of individual responsibility combined with individual and victim/community healing. With community support, offenders deal with the underlying causes and impacts of their crime, restoring relationships in the process.
Frequently misunderstood is that the offender is not receiving a more lenient sentence, just a different one.
In the wake of changes to the Criminal Code and the seminal
Supreme Court of Canada R. v. Gladue decision of 1999, many successful Aboriginal community restorative justice projects have been funded by the federal (and sometimes provincial) government, though it is only the rare bad apple that gets mainstream press coverage. According to a recent CBC article, Aboriginal people make up about 17 per cent of all inmates serving conditional sentences.
Another group with a lot to lose are young offenders, given proposals to sentence anyone 14 years or older who is charged with serious violent or repeat offences as an adult and to amend the Youth Criminal Justice Act to include deterrence and denunciation as mandatory sentencing principles.
Just what we need, more youth 'super jails' -- as if the pending monster in Brampton weren't enough.
Here's a suggestion derived from the new government's keenness on courting Quebec: take a look at their success with alternative measures for youth.
According to the Department of Justice, in a recent study, youth court judges in every region of the country believed that a significant proportion of cases coming to youth court could be dealt with adequately through alternative measures.
But what do they know? After all, they only issue the sentences.
Ultimately, we can choose to maintain our standing as country that likes to 'lock 'em up good' or herald that, in recent years, Canada has carved out a role as a world leader in restorative/alternative justice.
Should we choose the latter, the construction folks aren't likely to be thrilled. In the U.S., mandatory minimum sentencing led to a dramatic increase in the numbers of incarcerated, and accordingly, in costs related to prisons. At home, the Elizabeth Fry society has indicated that building new jails for 6,000 inmates who would have previously been under house arrest would cost Canadian taxpayers about $400 million.
That's a pretty steep tab for an approach with questionable deterrent value, even prior to factoring in the social and economic costs of recidivism and the push for prison privatization.
Michelle Mann is a Toronto-based lawyer, freelance writer, and consultant. Her e-mail address is [email protected]
