Social Policy in Ontario

This week, the B.C. Court of Appeal hears the first major challenge to the latest symptom of a punitive plague: mandatory incarceration for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in the downtown eastside of Vancouver, where he struggles with addiction and regularly interacts with the court system. In the past, local judges could use their expertise to craft an individualized punishment for people like Lloyd. Community supervision, drug programming, or specific amounts of jail time could target his specific circumstances.

New legislation compels judges to impose a minimum one-year prison term on all individuals who meet a handful of criteria. Judges can no longer consider whether it is in the public interest to incarcerate someone like Lloyd, or for how long. They can no longer consider whether a person will lose housing or employment. While one year in a chaotic jail is unlikely to help a struggling individual to recover stability, that is a judge’s only option unless the law is struck down.

In the United States, the removal of discretion from sentencing judges is the central cause of its famously high rate of incarceration. There are nine million prisoners in the world. Over two million of them are in the U.S. The explanation can be traced back to the climate of the 1970s: high crime rates and a civil rights backlash, the fusion of race and crime in the Republican Party’s Southern Strategy and a shift from offering welfare-state benefits to offering law-and-order policies to gain electoral support. The convergence of these factors led to hundreds of reforms — and eventually, the war on drugs — that expanded the scope, severity and cost of the prison system.

Remarkably, academics and politicians on both sides of the American political spectrum initially supported reform. Unlike the Canadian system today, before the 1970s there was very little appellate review and a dearth of legislative standards to guide the power of American sentencing courts. Liberals like Marvin Frankel argued that unchecked discretion allows judges to smuggle racist and classist attitudes into their decisions. Conservatives, by contrast, thought judges were unduly lenient, and that specifying sentences in legislation properly enhances severity.

Americans of all political stripes have since learned that stripping judicial capacity to respond to the individual in front of them has undesirable consequences. The U.S. federal prison system alone expanded from 24,252 inmates in 1980 to 208,118 by 2009. The fastest growing group has been women, because judges can no longer order a community sanction for the many non-violent female defendants who appear before them as the sole caretakers of children.

Canada has almost none of the social tension and insecurity of 1970s America. As many have noted, Canada has experienced the same fall in serious crime as the rest of the industrialized world, due to clearly widespread factors that experts are only beginning to unravel. This might explain why Harper’s “tough-on-crime” agenda is not faring well in the courts.

The American “victims’ rights movement” emerged out of a collapse of rehabilitative rationales and a sense that basic shared values were eroding. The notion of a similar Canadian movement is more a symbolic appeal to an electoral base than a grassroots movement grounded in current experience. The federal Conservatives are undoubtedly trying to mobilize voters, but it’s difficult to understand why we would want to support costly incarceration at a time of peaceful streets and social stability.

The arrival of mandatory sentences does not herald the “Americanization” of Canadian crime policy. The deep principles of our criminal justice system cannot be dismantled overnight. Our prosecutors are not a bloodthirsty lot — they are largely anonymous and professional public servants. Unlike many of their American counterparts, Canadian prosecutors are not subject to elections and public scrutiny. They are better positioned to pursue a broad notion of the public interest, rather than just long prison sentences.

Canadian judges are also likely to resist interference by politicians who are detached from the daily reality of human misery faced in criminal courts. And they have the tools to do so. While Canada and the U.S. have identical language in the constitutional prohibition against “cruel and unusual punishment,” the prohibition has been interpreted very differently in the courts.

In 2003, the U.S. Supreme Court upheld a life sentence for a third offence of stealing golf clubs. In 1987, the Canadian Supreme Court struck down the only previous attempt at automatic incarceration for drug crime: a seven-year term for drug trafficking. So far, mandatory sentences for non-violent drug offences are unconstitutional in this country.

Canadian institutions are likely to resist this untimely American policy transplant. There is no collapse of faith in our courts, there is no crime wave, and there is no Southern Strategy. Joseph Lloyd should encounter a court system that is free to encounter him.

Lisa Kerr is a doctoral candidate in law at New York University and a Trudeau Foundation Scholar.

< http://www.thestar.com/opinion/commentary/2014/06/03/mandatory_minimums_for_drug_crimes_have_no_future_in_canada.html >