Our once-noble justice system has become just another social program,
and it’s failing to protect Canadians

by Margret Kopala

Published in the Ottawa Citizen, January 13, 2007

Vancouver’s downtown Eastside spans the few blocks north of Pender before you reach Burrard Inlet and several blocks on either side of Main Street. Not quite New York City at the height of its crime waves in the eighties but with 15-20,000 drug addicts, dealers and illegal immigrants, it is today Canada’s worst city centre for crime, says retired Justice Wallace Gilby Craig.

As a judge who for 26 years sat on the bench of the Vancouver criminal division of the provincial court, Craig experienced changes in the justice system first hand. Despite its constitutional obligation to protect against crime, he says, a new orthodoxy now requires offenders be released into communities to serve their sentences with the result they are free to commit more crimes. “The essence of this new orthodoxy was stated in the House of Commons in 1971 by then Solicitor General Jean Paul Goyer: ‘From now on, we have decided to stress the rehabilitation of individuals rather than the protection of society.’”

How did a once-noble criminal justice system embodying the principles of denunciation, deterrence and incapacitation become just another social program that in this case rewards deviant behaviour and what are the consequences of these changes? As Ian Lee, a political scientist and professor in the Sprott School of Business at Carleton university reminds us in the forthcoming How Ottawa Spends (McGill Queens, March 2007) such an approach was analyzed by Thomas Hobbes in the Leviathan and he concluded it led to anarchy.

But it is Craig who, in his columns for the Vancouver’s North Shore News, shows how changes in the Parole Act and the Criminal Code along with “anything but jail” advocacy achieved this. Combining offences, concurrent sentencing, early parole …, it didn’t hurt either that, since the 1950s, elite thinking embraced root-causes, society-is-to blame theories of crime. These theories argue that social injustice, racism and poverty cause crime therefore policing and imprisonment are of little use.

Two new books challenge this view. The first, A Land Fit for Criminals by retired probation officer David Fraser, scathingly exposes a liberalized British justice system that allows the benefits of crime to outweigh its costs. The second, The Great American Crime Decline by Franklin E. Zimring, brings the antiseptic discipline of a statistician to bear on declining U.S. crime rates.

Returning persistent offenders to the community does not work, David Fraser says, either as a means of reform or of protecting British citizens, thousands of whom sleep in fear with guns and other weapons at their bedside to ward off burglars. Why? Because upwards of 60 million estimated crimes are being committed each year in Britain but because of policing and other shortages, of the 5.2 million crimes that are recorded, 1 in 16 has a chance of being prosecuted.

The idea that crime is the fault of society and the lenient treatment of criminals has created a “Criminals’ Charter”, he says, while the failure to build enough prisons has resulted in the overcrowding that keeps them in a state of panic even as it serves the propaganda needs of the anti-prison ideologues.

And who can forget how, in the 1950s, we left our doors unlocked and children wandered the streets safely? Fraser explains why by producing a chart revealing how high prison populations in the fifties coincided with low crime rates, while low prison populations match Britain’s escalating crime rates today.

Disarmingly, Fraser states the obvious. “…when offenders are in prison they cannot commit offences …”.

The state must honour its duty to protect the public by accepting rising prison populations and by reviving police operations, he says. If it fails its duty, the public should have the right of redress.

The effectiveness of incarceration and policing operations are a constant theme in American law and order initiatives and though American crime rates declined through the 1990s, few social scientists agree about their causes. Frank Zimring at the University of California, Berkeley, in The Great American Crime Decline, analyses ‘the usual suspects’, namely demographics, the economy, changing drug use patterns and higher prison populations and finds complex answers. But in this nuanced and cautious book, even he concludes that the only explanation for New York’s stunning crime decline, double that of the rest of the country, were “police trends”.

Such ‘trends’ are now the stuff of legend but as a 2001 Manhattan Institute paper by Dr. George L. Kelling and William H. Sousa explains, New York simply returned to the first principles outlined by Scotland Yard’s Sir Robert Peel in 1829: “The basic mission for which the police exist,” he wrote, “is to prevent crime and disorder”.

In 1990’s New York, this meant tackling the small problems before they became big ones (‘Broken Windows’ theory) while increasing police accountability and numbers to include more foot patrols.

And here in Canada? Though Canadian crime rates mirror declining rates in the U.S., Britain’s “Criminals’ Charter” easily applies here. Why else bar our windows and bolt our doors? “It’s a terrible metaphor,” says Craig, “decent citizens behind bars while rogues … prowl about on probation …”

Whether or not rehabilitation efforts work, the larger question of human agency - that is, the ability of the individual to make moral choices and accept their consequences - remains. And the fact also remains that violence to another human being is a violation of the fundamental human right to live in peace.

But the point, finally, is that the criminal justice system shouldn’t concern itself with the causes of and cures for crime. Protection of society through the humane application of the law is the only function of the criminal justice system that makes sense. This needn’t deny motivated offenders support; rather such support should be the purview of civil society and other branches of the state.

“Our communities will never be besmirched by an enlarged prison estate,” concludes Fraser, “but they will decay and rot under the influence of unchecked criminality.”

MARGRET KOPALA’s column on western perspectives appears every other week.

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