The Harper Doctrine: Once a Criminal, Always a Criminal
September 29, 2012
Liberal and Conservatives have agreed that our criminal justice system should rehabilitate offenders — until now
IN FEBRUARY 1993, Canada’s crime rate stood at an all-time high, Brian Mulroney was prime minister, and a Conservative-dominated House of Commons committee released a report on crime prevention that held no surprises for those who followed criminal justice policy. It described the “inherent inadequacy of the criminal justice system” as a means of addressing the problem, pointing out: “If locking up those who violate the law contributed to safer societies then the United States should be the safest country in the world. In fact the United States affords a glaring example of the limited impact that criminal justice responses may have on crime….Evidence from the U.S. is that costly repressive measures alone fail to deter crime.”
The committee chair, Conservative Member of Parliament and former RCMP officer Bob Horner, told the press, “If anyone had told me when I became an MP nine years ago that I’d be looking at the social causes of crime, I’d have told them that they were nuts. I’d have said, ‘Lock them up for life and throw away the key.’ Not any more.”
SKEPTICISM ABOUT the idea that imprisonment constitutes a good solution to the crime problem began decades before these stark statements. In 1938, for example, a Royal Commission examining the country’s penal system concluded: “The undeniable responsibility of the state to those held in its custody is to see that they are not returned to freedom worse than when they were taken in charge. This responsibility has been officially recognized in Canada for nearly a century but, although recognized, it has not been discharged. The evidence before this Commission convinces us that there are very few, if any, prisoners who enter our penitentiaries who do not leave them worse members of society than when they entered them.”
We now know, quite conclusively, that the commission was correct. Though necessary in some cases, imprisonment has limited usefulness and does not rehabilitate. Three decades later, in 1969, a blue-ribbon, federally appointed committee came to the same conclusion: “In all cases where there has been no finding of dangerousness, sentences of imprisonment should be imposed only where protection of society clearly requires such a penalty….The Committee wishes to emphasize the danger of overestimating the necessity for and the value of long terms of imprisonment except in special circumstances.”
Over the years, the tension between what was seen as good policy and actual practice led many independent committees and commissions to examine how we could create a criminal justice system that better reflected Canadian values. However, it was not until 1982, after a decade of study by the Law Reform Commission of Canada, that the federal government wrote a formal statement of criminal justice policy, which it hoped would act as a guide for the development of our criminal law. Released under the signature of then minister of justice and future prime minister Jean Chrétien, its major theme was simple: “[The] approach calls for restraint to be employed in the use of criminal law and the criminal justice system, on the basis of a conception of the criminal law as the ultimate point along the spectrum of society’s informal and formal methods of dealing with conduct….In awarding sentences, preference should be given to the least restrictive alternative adequate and appropriate in the circumstances.”
Not surprisingly, the statement met with little criticism. Indeed, Globe and Mail columnist Michael Valpy complained that no serious person could disagree with it, because it contained nothing more than “a discussion of only very broad notions about crime and society and a set of principles which fall into the region of motherhood.”
The Liberals lost power to the Conservatives in 1984, and in 1988, just before the end of Brian Mulroney’s first term, a parliamentary committee released a 300-page report that endorsed many of the views expressed in the Liberal statement six years earlier. The 1988 committee was dominated by the majority Conservatives and chaired by Conservative MP David Daubney. Conservative MP Bill Domm, who had spearheaded the attempt to restore capital punishment in 1987, was a committee member. Rob Nicholson, who nineteen years later would be appointed Stephen Harper’s second minister of justice, served as vice-chair. Its conclusion differed little from that of the Liberals. “Carceral sentences,” it said, “should be used with restraint; there must be a greater use of community alternatives to incarceration where appropriate, particularly in cases not involving violence or recidivism.”
A year later and now in its second term, the Conservative government reprinted and re-released the Liberals’ 1982 report, the one Valpy had characterized as “motherhood,” making no changes other than to remove the page with Jean Chrétien’s signature. In the 1980s, apparently, Liberals and Conservatives shared the same criminal justice mother…
