Since the conservative party acquired the majority in the House of Commons, five different bills related to the criminal justice system were passed. By itself, the omnibus bill C-10 on « safe streets and communities » targets over 200 criminal provisions. Though the conservatives never hid their intention to get tough on crime, the punitive approach they advocate is relentlessly denounced by criminologists and jurists. It seems also likely to exacerbate the overrepresentation of Indigenous women in Canadian prisons.

In June 2011, during his speech from the Throne opening the new parliamentary session,  Prime Minister Stephen Harper assured Canadians that his government will « move quickly to reintroduce comprehensive law-and-order legislation.» Indeed, the crime bills previously introduced by the conservatives almost all died, with each one stumbling on the majority’s opposition.

In their political platform, the conservatives deplore that their « reforms » have been obstructed « for the sake of an out-of-touch ideology that makes apologies for criminals.» Once in the majority, they reoffend : C-10 is reintroduced, and it reiterates word for word, the provisions of nine defeated bills. The law was enacted last March, only a hundred days after its initial presentation.

Minimal sentencing

For the most part, Bill C-10 lenghtens some mandatory minimum sentences already prescribed in the Criminal Code. It also creates new ones for drug-related offenses. For example, a person found guilty of cultivating more than six plants of marijuana can be sentenced to a minimum of six months in prison. One for each plant, so to speak.

By imposing the mandatory minimum sentences, the governement curtails the function of the judges at trial. According to the principles set out in the Criminal Code, the judge has to impose a sentence that is « proportionate to the gravity of the offence and the degree of the responsibility of the offender.» After that balancing exercice, the judge can decide that incarceration is not an appropriate sentence for the offender and instead choose an alternative, like for example, a sentence to be served in the community.

Now that the law imposes mandatory minimum sentence in a correctional facility,  the judge has both hands tied : there is not enough room to maneuver and adapt the proper sentence to the offense committed. The judge is forced to impose that minimum sentence, regardless of the offender’s specific situation or crime.

In its brief on Bill C-10, the Québec Bar was categorical. Written in French, the document describes the changes as « an important step-back », denounces the « unintended consequences» it may have, and deplores this « form of intrusion of the legislative power in what usually belongs to the judicial power.»

The Canadian Criminal Justice Association highlights that the severity of a sentence does not have a deterrent effect : « offenders simply do not consider the length of sentence when deciding whether or not to commit an offense.  Rather, their concern lies with whether or not they will be caught and punished for the offense,» they wrote in a position paper published on their website.

A broader punitive shift

Aside from the mandatory minimum sentences, C-10 harshens the rules for conditional sentences, which allow a convicted person to serve time in the community by restricting its availability for certain offenses. The rules governing conditional releases were also hardened.

Other changes affect the actual Youth Criminal Justice Act to facilitate the detention of young offenders. This approach stands against the overall intent of a law concerned with the rehabilitation and the social reinsertion of teenagers from fourteen to seventeen years old, away from the adult criminal system. With the changes brought by C-10, teenagers charged with a crime on property, like theft, could face five years in prison.

The punitive shift can be observed all the way to the application for pardon. This procedure allows a convicted person who completed their sentence to ask for the removal of all information to their conviction in their criminal record. Before C-10, an eligible person had to wait from three to five years, depending on the nature of the crime, before applying for a pardon. Now, the waiting time is from five to ten years. Application fees were also recently increased from $150  to $631.

Overpopulated jails…

For many observers, these changes might increase prison population. Yet, they are introduced at a time where Canadian correctional facilities are overcrowded.

Correctional officers are increasingly worried by the consequences of the overpopulation on their working conditions. In a recent press release, Pierre Mallette, the National President of the Union of Canadian Correctional Officers denounced the situation. « The government is locking up more inmates in fewer prisons while giving us less resources to rehabilitate them. This is a recipe for disaster,» he stressed.

In 2010, the Canadian Centre for Policy Alternatives was already reporting the worries of correctional officers working in facilities where they aggregate all types of offenders, be they murderers or shoplifters.

… with a marginalized population

The conservatives « tough-on-crime » approach affects mostly the traditionally marginalized groups. Indeed, in Canada, indigenous women are the fastest-growing demographic in prisons.

According to the Elizabeth Fry Association, a community organisation helping women who have problems with the criminal justice system, the number of women in federal facilities increased by fifty percent in the past decade. As for indigenous women, their number increased by ninety percent during the same period according to Public Safety Canada.

Data from Native Women’s Association of Canada indicates that in 2011, Indigenous women represented less than four percent of the Canadian population, but accounted for thirty four percent of the female population in prisons—numbers gathered from the annual report of the Correctional Investigator and Statistics Canada.

The report « Marginalized : The Aboriginal Women’s experience in Federal Corrections,» made public on September 27 is just as compelling. Prepared by The Wesley Group and published by Public Safety Canada, it highlights that the « Federal Government’s "Tough on Crime Agenda" does nothing to ameliorate the disproportionate rates at which Aboriginal peoples are incarcerated—quite the opposite…  the federal government’s current plan will only serve to further increase the numbers.»

In this context, it seems unlikely that the punitive strategies put in place by the conservatives in the name of law and order will result in something more positive than an exacerabation of the systemic problems of overpopulation or continued marginalization and overrepresentation of Indigenous women in Canadian prisons.

Arij Riahi is a legally-trained writer based in Montreal.

This article was originally published in French for the Journal des Alternatives and it has been translated by the author.