Pivot Legal Society - Equality Lifts Everyone


Getting ready for Harper's "Lock-em-up" crime bill

He that is taken and put into prison or chains is not conquered, though overcome; for he is still an enemy - Thomas Hobbes


Despite the fact that the imprisoned person was most likely never an "enemy" of society in the first place, Hobbes was at least right on one thing:  locking people up in prison doesn't really change them all that much.  The idea that prison is first and foremost a rehabilitative system is quaintly passé these days, harkening back to a time when society was a bit more idealistic about its institutions.  The reality these days - in a time when lack of resources mean that many imprisoned offenders have no access to beneficial rehabilitive programs while incarcerated - is that when many offenders who have spent time in our prison system are released back into society, they are worse off than when they entered.  They are often seen back in the courts and, ultimately, back in prison.  The term for this is recidivism, and - ironically - is often also used in the context of drug addicted persons experiencing relapse.  It's ironic because one aspect of the federal government's new Omnibus Crime Bill - (AKA "Bill C-10" or the "Safe Streets and Communities Act") is that drug addicted persons who happen to sell drugs to fund their addiction can find themselves imprisoned under new mandatory minimum sentencing guidelines.  That their addiction drove them to the crime in question will be irrelevant as far as the new sentencing rules introduced by this bill are concerned.

With this bill now in debate in the Senate, it seemed timely that I attended a prison conference at the University of Waterloo last week called, "Breaking Bars, Building Bridges" and talked about the new bill and its foreseeable impacts on our clients: marginalized people who often are wrestling with complex social issues, including addiction.  The conference was for two days and drew a large mix of participants: anti-prison activists, academics, community activists, and a pretty fair-sized group of people who had spent some time incarcerated.  I co-presented a talk with the amazing Lisa Kerr, a Canadian lawyer who worked for some time with Prisoner's Legal Services in Abbotsford and is currently working on her PhD in law at NYU in New York City. 

Our talk was titled the provocative Is Canadian crime policy becoming "Americanized"?  Lisa's presentation focused on a comparison of three factors:  1) rates of imprisonment, 2) penal style, and 3) sentencing policy and authority.  In the end, Lisa concluded that we're still a far way off from the American system, where a huge proportion of the population is behind bars and the judiciary hasn't the culture of independence that ours does in Canada.  However, Lisa and I both agree that Bill c-10 represents a major change and a cause for concern.

My presentation ("Bill c-10: Tough on Crime, Tougher on Marginalized People") took a different slant and focused on the specific elements of Bill c-10 that I believed would have the greatest impact on marginalized people.  At Pivot, we've just begun a year-long project on mandatory minimums that will analyze the constitutional issues raised by mandatory minimums, look at the socio-economic effects of this bill, and record accounts from marginalized persons themselves on how this new legislation would be affecting them.  At this early stage, we've identified some parts of the bill that look particularly troubling.

What's troubling in Bill c-10?

Bill c-10 is a large piece of legislation that amends several statutes in a broad range of areas, including the rights of victims of terrorism to recover from foreign states, amendments to the Criminal Code in the areas of sexual offences against children and conditional sentencing, amendments to the Corrections and Conditional Release Act (which governs what happens inside federal prisons), changes to the rules about pardons, and amendments to the Youth Criminal Justice Act.  And, one of the most troubling aspects of this legislation is its amendments to the Controlled Drugs and Substances Act, the legislation that includes criminal offences for unlawful possession, trafficking, and producing of drugs.  The provisions of the bill that introduce mandatory minimum sentences for drug crimes is, perhaps, the most draconian feature of the Omnibus Crime Bill.

For example, if an offender is convicted of possession for the purposes of trafficking (i.e. you're holding something that you might sell) and you're standing in a place where minors frequent (that is, practically everywhere), you will face a minimum of two years in prison.  If you've grown six or more marijuana plants and intend to sell a joint or two from the harvest, you're facing six months behind bars.  If you're a renter that punishment will bump up to nine months.  If you grow between 201 and 500 plants, the minimum jumps up to one year in prison, and two years for over 500 plants.  Aggravating factors, such as growing on someone else's property, increase the sentence by 50%.  In all, these changes promise to be widespread and have serious impacts for people, particularly drug users who sell drugs to finance their addiction; aboriginals, who are already over-represented in the prisons; and low-income people, who are more likely to be renting. 

For aboriginal offenders, there are other concerns.  Mandatory sentences preclude any opportunity for a sentencing judge to order any kind of conditional sentence.  However, section 718.2(e) of the Criminal Code and the Supreme Court of Canada case explaining this section, R. v. Gladue , set out that aboriginal offenders are to be treated differently, and  - if at all possible - prison sentences are to be avoided.  Instead, a culturally-appropriate approach where an offender can serve his or her sentence out in the community is preferred.  But, with mandatory minimums, a judge doesn't have this option.   Of course, there are many more concerns around questions such as "who's going to pay for all the new prisons that we'll need?" and the fact that without incentives to plea bargain for a conditional sentence, offenders will likely just take their chances on a trial, clogging the justice system and skyrocketing the costs of running the courts.

Is this all constitutional?

Undoubtedly, there will be Charter challenges to this new legislation after it's enacted on the grounds of cruel and unusual punishment (s.12), liberty (s.7), and equality (s.15).  Interestingly, this past week an Ontario Superior Court judge struck down a three-year mandatory minimum sentence for a man posing on Facebook with a loaded handgun.  Judge Anne Molloy found that incarcerating the offender - Leroy Smickle - would be cruel and unusual punishment.  That this was his first criminal offence, the gun wasn't his, and he wasn't intending to use it, played a part in the decision that the punishment didn't fit the crime.  Also of importance was that he had a job and family and the mere fact of incarceration would disrupt his life and likely lead to him becoming a more-hardened and bitter person, perhaps opening the door to a real foray into crime for Mr. Smickle.  This case will end up in the Supreme Court of Canada, where they may elaborate on the concept of Charter s.12 and cruel and unusual punishment. 

Which brings us back to Thomas Hobbes.  The federal government thinks that mandatory minimum sentences are a good idea because in their "tough-on-crime", black and white worldview, serious threats of punishment will deter criminals and send a message to society that we don't like criminals (especially in the area of drugs).  In reality, the new laws will not change the fact that the poor, weak, aboriginal and addicted are the ones who are caught up in the criminal system.  When we incarcerate these "enemies" can we really expect that we won't have even greater social costs and burdens to deal with when they are let out.