Getting Smart on Crime Instead of Tough

Mandatory minimums. Mega prisons. “Tough” on crime.

These have been the hallmarks of the Federal government’s reform of the criminal justice system, but the policies have been more politically motivated than good policy or social science evidence. Canada’s crime rate has been the lowest since 1972, and the literature on law enforcement suggests these measures will actually make things worse.

The mandatory minimum provisions and removal of credit for time has already been challenged successfully in court. Courts in B.C., Nova Scotia, Ontario, and Northwest Territories have all found these provisions as unconstitutional, culminating in the Supreme Court’s decision in R. v. Nur earlier this year.

Chief Justice McLachlin rejected the Crown submission in that case that their ability to proceed summarily in hybrid offences with mandatory minimums vitiates the grossly disproportionate impact of these penalties,

[87] Sentencing is inherently a judicial function. It is the courts that are directed by Parliament to impose a mandatory minimum term of imprisonment, and it is the duty of the courts to scrutinize the constitutionality of the provision.

The Crown’s submission is in effect an invitation to delegate the courts’ constitutional obligation to the prosecutors employed by the state, leaving the threat of a grossly disproportionate sentence hanging over an accused’s head.

At para 91, she went as far as suggesting that these measures were bad laws that even if fixed on a case-by-case basis they would not dispense of the role and responsibility of Parliament.

The role of Parliament is to create and enact constitutionally valid laws. Anyone would get that wrong, sometimes. The responsibility of Parliament is to enact laws in the public interest, and not for blatant partisan goals.

In addition to mandatory minimums, the Federal has also intends to end automatic early release. This will likely cost over $200 million a year more, and add 2,500 inmates to the prison system annually.

Sean Fine of The Globe stated,

…Canada’s federal prison population… is now at a near-record 14,885, up nearly seven per cent in five years, even as crime rates have steadily fallen. (The record high of 15,276 was reached in July, 2013, and matched in March, 2014.) As prisons have got more crowded, they have become more violent, with greater reliance on controls such as pepper spray or solitary confinement, and with rehabilitation programs stretched thin. The change would also affect aboriginal prisoners the most, as they are more likely to be in jail for long terms, to have committed violent crimes, and to gain their freedom by statutory release rather than parole.
[emphasis added]

The obvious solution in this mindset for overcrowded and violent prisons are larger, better staffed mega prisons. A proposal for a 2,200 cell facility in Kingston would cost $500 million to build and cover 1.6 million square feet, with 650 prison guards.


Part of the reason for these changes are the Americophile nature of the current federal government. The U.S. has the highest incarceration rate in the world, holding a quarter of all the prisoners on the entire planet. This trend started in 1973 with Nixon’s War on Drugs, which led to mandatory minimums and an astonishing seven-fold increase in incarcerations.

The end result is that $260 billion is spent on criminal justice in the U.S. every year, more than a quarter of the national deficit. A small price to pay to keep a country safe – if money is spent wisely.

A popularly held conclusion that these measures worked is based on the drop in crime rates starting in the early 1990s. Violent crime is down by 51 per cent since 1991, and property crime has declined by 43 per cent.

This assumption has been demonstrated to be largely overstated, and even fallacious, in new study by the Brennan Centre for Justice at New York University Law School. Dr. Oliver Roeder, Lauren-Brooke Eisen, and Julia Bowling looked at a number of economic factors, including unemployment rates, inflation, consumer confidence, growth in income.

They also looked at changes in the social environment such as the aging population, decreasing alcohol and crack use, legalization of abortion, and even the decreased use of lead in gasoline. Apparently early exposure to lead during childhood development leads to a higher propensity to commit crimes, though the authors couldn’t collect enough data to make a definitive conclusion on this factor.

After sifting through all of these factors, they found that most of this decline could be attributed to the fact that baby boomers are getting older. An older population is less likely to commit crimes. The tough on crime measures had neglible effects on the crime rate overall. What does effect crime rates is better police work and more funding for law enforcement,

Public and political pressure to effectively fight crime and improve public safety has been used to justify mass incarceration despite the economic, human, and moral toll. However, as this report finds, during the past two decades the approach of using incarceration as a one-size fits all punishment for crime has passed the point of diminishing returns to actually reduce crime.

This report demonstrates that when other variables are controlled for, increasing incarceration had a minimal effect on reducing property crime in the 1990s and no effect on violent crime. In the 2000s, increased incarceration had no effect on violent crime and accounted for less than one-hundredth of the decade’s property crime drop.

This report also finds that one police management technique, CompStat, had a modest effect on reducing crime.

The criminal justice policies of the last half century have played a crucial role in feeding the explosion in incarceration as a primary method to combat crime. However, the findings in this report call lawmakers to seize the current moment for change.

The Economist, calling for change, puts in perspective the challenge of rehabilitating this aging, incarcerated population, back into society,

Crime is largely a young man’s game, but many prisoners now are old: the number over the age of 50 has more than tripled since 1994. Many of these people are no longer dangerous, but locking up the elderly—and treating their ailments—costs taxpayers a fortune, typically $68,000 per inmate each year. The longer prisoners are inside, the harder it is for them to reintegrate into society. And mass incarceration has contributed to the breakdown of working-class families, especially black ones. Among African-Americans aged 25-54, there are only 83 free men for every 100 women, which is one reason why so many black mothers raise children alone. Men behind bars cannot support their offspring, and when they are released, many states make it preposterously hard for them to find jobs.

The constitutionality of these mega prisons may be questionable as well, though the damage will likely be already done if they are challenged. A 2011 investigation by Amnesty International found conditions in Arizona highest security maximum custody facilities potentially violated Article 10 the International Covenant on Civil and Political Rights (ICCPR), which states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” The American experience with mega prisons is not one which Canada should seek to emulate.


As we celebrate National Aboriginal Day today, it’s worth emphasizing the disproportionate impact of these changes on First Nations in Canada. Jonathan Rudin explains the culture clash theory for the higher incarceration rates in Aboriginal Peoples and the Criminal Justice System,

This theory starts from the undeniably correct thesis that Aboriginal concepts of justice and Western concepts of justice are very different. The theory then goes on to conclude that when Aboriginal people are required to fit into a system that does not recognize their values, overrepresentation occurs…

In Aboriginal society there is a great emphasis on taking responsibility for one’s actions. In the criminal justice system taking responsibility means pleading guilty. However, being responsible for an event occurring is not necessarily the same as being legally guilty of the offence—that distinction may be lost on Aboriginal people who thus plead to offences for which they may have valid defences. The idea of guilt itself is one that is foreign to many Aboriginal peoples. Aboriginal languages cannot translate words like “guilty” or “innocent” as they have no analogues. Culture clash may also come about as a result of non-Aboriginal people not understanding the cultural norms in an Aboriginal community…

Justice Murray Sinclair, author of the Truth and Reconciliation Report, received an honourary doctorate last Friday at Osgoode Hall, where I was receiving my LLM. I had the opportunity to discuss in private some of his early life with him , and he shared the challenges of moving from his family and territory to a larger town for high school, where everything was about their way of life, their living, and the disconnect he felt as a result.

Canadians should rightly feel a disconnect from the American model of criminal justice.

Canada doesn’t have a young baby boomer population, or a war on drugs. We don’t have the crime rates that America does, either now or in the 70s. We don’t need to repeat the mistakes of other countries to discover a generation from now that it was all wasted money. It’s not our way of doing things.

Unlike unconsitutional sentencing regimes, the tide towards mega prisons and emphasizing incarceration instead of rehabilitation, can only be reined in on time by the public. The money spent on mega prisons is better invested in better trained and paid police officers, and strategic financing of law enforcement technology. Lawyers, who are best informed of the justice system, have a responsibility to ensure the public is aware of this deep-seated misunderstanding of how it actually works.


Omar Ha-Redeye with Justice Murray Sinclair, recipient of the 2015 honourary doctorate of law.


  1. David Collier-Brown

    We’ve often learned from our American cousins about what worked and didn’t work: this looks like their experiment in increasing incarceration was a massive failure.

    My father once said “we get all the problems the US does, half as strong and five years later”.

    I’d encourage a US-loving government to pay quite close attention to the outcomes of experiments America is kind enough to do on our behalf (;-))

  2. “The idea of guilt itself is one that is foreign to many Aboriginal peoples. Aboriginal languages cannot translate words like “guilty” or “innocent” as they have no analogues.”

    1) Is this accurate? I notice that while 137 citations are made in that document this isn’t one of them. Given the number of aboriginal languages and the centrality of the concept of guilt and innocence to human existence, I somehow doubt this is the case.
    2) How many aboriginal people in Canada that encounter the justice system do not speak English or French which certainly do have words for these? A quick estimate is that only 80k out of 850k+ aboriginals speak a native as the primary language at home, suggesting that the overwhelming number would be familiar with English or French.
    3) How many aboriginal people in Canada that encounter the justice system have not been exposed to these concepts through other sources? (from religious services to crime dramas? the reality is most aboriginals have significant exposure to mainstream culture, even if geographically isolated.

  3. I may be confusing matters, however, to say that “overwhelming number would be familiar with English or French” doesn’t necessarily mean that within a cultural context the term “guilty” has the same resonance. The Commissioner explains at the beginning of the paragraph that “[i]n Aboriginal society there is a great emphasis on taking responsibility for one’s actions. In the criminal justice system taking responsibility means pleading guilty. However, being responsible for an event occurring is not necessarily the same as being legally guilty of the offence…”. In my interpretation of this paragraph the Commissioner is saying that using a cultural interpretation of the word guilty, Aboriginal society associates “guilty” and “responsibility” as being one and the same when in fact they are not within the law. So an individual may be responsible for an action but not guilty of committing that action.

  4. James,

    1) I agree that it’s difficult to make broad, sweeping generalizations about any culture or group.

    I don’t have time to check all of the references there, but I’m hoping that some of them do make this type of argument, as the quote above refers to a general trend or theory in the literature. More importantly, the issue is how Aboriginals perceive and deal with concepts of “guilt,” which generally differs from the way Western European cultures did, hence the culture clash.

    You’ll note that the culture clash theory is one of several used there to explain the situation.

    2) Most would speak English, French or both.

    The goal of the residential schools was not only to force the entire population to adopt these official languages, but to stamp out their own languages, hence the cultural genocide found in the TRC report.

    As the TRC report illustrates, forcing people to learn a word, and forcibly stripping them of their culture and understanding of self, is generally not a very effective way of building up resiliency and independence. In fact the goal of the schools was to accomplish the exact opposite of this.

    3) This is not simply a conceptual clash, but a cultural clash. This was illustrated to me by Justice Sinclair himself in his conversation with me.

    Many Aboriginals are still raised conceptually very differently, with stronger emphasis on community and interdependence. These frames of reference do not always transfer easily to urban living.

  5. David,

    The skeptical view is that the decline of mega prisons in the US (or perhaps slowing down in their growth) has direct economic consequences for the private entities involved.

    Some of these companies are simply looking for more work north of the border, and lobbying our government to achieve this.

    Good public policy has nothing to do with it.

  6. I also reject that “guilt” cannot be translated. This appears to be a red herring argument to explain away increased crime in aboriginal communities as increased convictions.

    Unless there are compelling statistics that the plead guilty/charged ratio is significantly higher among aboriginals than the rest of Canada for similar offences, this is a purely hypothetical argument.

  7. Vic,

    There actually is some information that the plea ratios are higher among Aboriginals. The Aboriginal Courtwork Program Evaluation states,

    Courtworkers explain the court processes, charges and the meaning of the plea to clients in a language that is simple and easy to understand. Some Courtworkers (10%) reported that, without their assistance, clients would plead guilty more often without understanding the implications of the charges.

    The Aboriginal Justice Implementation Commission states,

    According to our analysis of Provincial Court study data, Aboriginal persons pleaded guilty in 60% of the cases, compared to 50% for non-Aboriginal persons.

    Our analysis of the data also reveals that approximately 25% of Aboriginal persons received sentences that involved some degree of incarceration, compared to approximately 10% of non-Aboriginal persons, or 2.5 times more for Aboriginal persons.

    The Royal Commission on Aboriginal Peoples concluded

    The Canadian criminal justice system has failed the Aboriginal peoples of Canada…

    The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.

    These recommendations were accepted by the Supreme Court of Canada in Gladue.

    Nobody is explaining away crime. They are looking for solutions, and the ones posed historically have been deeply flawed.

  8. “According to our analysis of Provincial Court study data, Aboriginal persons pleaded guilty in 60% of the cases, compared to 50% for non-Aboriginal persons.”

    I think this actually goes against your point Omar. If the difference in pleading is only 60-50 it would seem to indicate that there isn’t a significant cultural difference between pleading guilty and not pleading guilty (although not ruling it out as a modest factor). As the same report indicates other factors which could easily account for that difference:

    “Our survey of inmates revealed that Aboriginal inmates spend considerably less time with their lawyers.”

    “nationally, the violent crime rate is 9.0 per 1,000, while for Indian bands the violent crime rate is 33.1 per 1,000 (3.67 times the national rate).”

    “Studies of Canadian prison admissions indicate that alcohol abuse is a factor in many of the crimes committed by Aboriginal people.”

    “the reported average income of persons with “total Aboriginal origins” in Manitoba is $10,672, compared to the average income of $16,796 for the province as a whole. There were 21.8% of status Indians who reported no income, compared to 11.5% of the total Manitoba population”

    If you have a prior conviction, no job, and no money for a lawyer, pleading guilty and getting the matter over with is probably far more appealing than if it would cost you your employment, blemish your record, and you can afford to fight it out.

  9. James,

    The difference between 50 and 60 per cent is not huge, but it is a difference. I referred to the link as some information, and definitely not anything definitive. We certainly need more information in this area, but I reject the proposition that without “compelling statistics” these explanations are “purely hypothetical.”

    Spending less time with lawyers is probably based on cultural factors and knowledge of the legal system as well.

    Without question, the challenge with Aboriginal crime and the TRC findings are complex, and multi-faceted.

    Although it overlaps, the primary point of this post was mandatory minimums and mega prisons. Although Aboriginal offenders would be affected the most, these policies are simply bad for everyone.