The Harper Conservatives' reverence for gain and disdain of evidence helped turn a justice system for the people into an enemy of the people.

The Harper Conservatives on Drugs and Crime: Penal Populism Comes to Canada

The singular legacy of the Harper government was the official importation of “penal populism:” the politicization of criminal justice and drug policy for short-term electoral advantage combined with a sympathetic – but largely content-free – discourse about “victims” amounting to a degradation of our justice system. It was all ideology all the time; characterized by open hostility toward evidence, disdain for harm reduction, and contempt for science, and disinterest in what works to limit the damage from incarceration, drug prohibition and drug use. The Harper government practiced – almost as a matter of principle – unwillingness to consider the consequences of their anti-science, anti-evidence, anti-best practices agenda. It was the worst of times during which this country tumbled from its world leading status as a correctional reform leader to importing the worst American justice errors.

Among correctional practitioners, it was nine years of ‘bumper sticker’ and ‘feel good’ dogma unconcerned with an appreciation of downstream consequences beyond consolidating the government’s electoral base. Epistemologically, the Harper agenda seemed to be driven by a theory of knowledge grounded in the conviction that the only reliable form of knowledge is the direct individual experience of common people. Just as much of the modern world was coming to appreciate the limitations – indeed harms – of drug prohibition, the Harper government re-committed Canada to this demonstrably failed social experiment. Just as the United States was awakening to the limitations of mass imprisonment, the Harper Conservatives were enacting laws to grow our rate of incarceration; what Conrad Black called “the knuckle-dragging, me-too, branch-plant, copy-cat simulation of the American assault on any hope prisoners may have of leading normal lives again.” For the first time in living memory, the United States is leading Canada in criminal justice, sentencing and drug policy reform.

Full disclosure: from 2007 to 2010 the writer was – coincident with the roll out of the Harper ‘crime agenda’ – Executive Director of the John Howard Society of Canada, committed to “effective, just and humane responses to the causes and consequences of crime.” In that capacity he made six presentations on crime bills to committees of the House of Commons and the Senate. He advised the Parliamentary Budget Officer on crime legislation. Since 2014 he has been Executive Director of the National Organization for the Reform of Marijuana Laws in Canada, an NGO devoted to modernizing cannabis laws, ending criminalization for use and possession and re-regulating cannabis for personal use.

In what follows I will highlight some of the worst features of Conservative penal populism before turning to a discussion of how the Trudeau majority can begin to undo the damage of the Harper era.

The Harper Government on Drugs: Ideology über Alles

Canadian governments have struggled with bringing rationality to drug policy since the late 1960s when it became obvious to law makers that the criminal justice system was not producing the desired outcomes, i.e., raising prices through criminal prohibition and deterring users. The Le Dain Commission put law makers on notice that prohibition was likely to make everything about drugs, and drug use, worse than it would otherwise be, but by then a momentum was established both here and in the United States. As the U.S.-inspired “war on drugs” ramped up, Canadian law makers scrambled for ways to minimize the harmful effects of prohibition. By and large they succeeded through an all-party consensus to limit the use of incarceration whenever possible and to provide treatment and community-based alternatives to incarceration. Various attempts were made to reform cannabis laws – which were understood to be disproportionately harsh in relation to the actual harm produced by the substance – but international obligations and U.S. threats to “thicken the border” aborted serious reform. As late as the Paul Martin Liberal minority, Justice Minister Martin Cauchon proposed de-penalization and his Bill made it all the way to the Senate before Martin’s government fell to the first Harper minority.

The Harper Conservatives broke with a long-standing expert consensus on drug policy. Public servants stopped – or were dissuaded from – using the language of harm reduction, evidence-based policy or public health. Conservative Senator Claude Nolin’s magisterial 2002 analysis on the need for public health regulation of cannabis was shelved. Within weeks of coming to power Public Safety Minister Stockwell Day killed a safe tattooing strategy that the previous government had asked the Public Health Agency of Canada to conduct – a strategy that showed how to reduce the spread of HIV and hepatitis C between prisoners. The die was cast.

In October 2007, the Prime Minister rolled out his National Anti-Drugs Strategy with this innocuous sounding couplet: “If drugs do get hold of you – there’s help to get you off them. And if you sell or produce drugs – you’ll pay with jail time.” This dog-whistle was aimed at two audiences. The electoral base understood it to mean that Conservative drug policy would be compassionate toward persons with drug addictions, while experts and researchers inside and outside government understood that their input, expertise, knowledge and experience would not influence policy.

Drug policy reform was dead. The Conservatives next turned their attention to rolling back what little progress had been made. In August 2008, then Minister of Health Tony Clement “left officials from the [World Health Organization] flummoxed and red-faced” with his denunciation of Insite – Vancouver’s Safe Injection Facility – at the International AIDS Conference in Mexico City. More than 40 peer-reviewed studies in The Lancet, the New England Journal of Medicine, and the British Medical Journal agreed that harm-reduction strategies like free needle exchanges reduce HIV infections and death rates, and increase the number of people seeking treatment without increasing crime. By public health indicators, Insite was doing what it was supposed to do. But Minister Clement knew better: “Allowing and/or encouraging people to inject heroin into their veins is not harm reduction; we believe it is a form of harm addition.”

And so it continued more or less in this pattern. Before he dropped the writ, the Harper government tried to recruit the Canadian Medical Association into a publically funded mis-education campaign about cannabis which, to their credit, the CMA refused to participate in. Canadians began to read press accounts of the Harper government’s interference in scientific research, of the gagging of public experts in areas where the government sought to enforce message discipline. In the last days of the 2015 election, the Prime Minister committed a pants-on-fire falsehood by claiming that cannabis was “infinitely worse” than tobacco – a statement easily refuted by anyone with an internet connection. Only his last-minute desperate-for-votes appearance with Toronto’s Ford brothers made the Prime Minister look more ridiculous. “It is clear,” wrote Kathryn O’Hara and Paul Dufour in their 2014 survey of the government’s “remarkable and unprecedented transformation” of the role of science in the public dialogue “that Canada’s image as a democratic federation that uses evidence and promotes a knowledge-based economy has suffered considerably.”

On the crime agenda, the situation was equally depressing.

Crime or Punishment: What was the Harper Government’s Agenda?

The Harper government’s distinct contribution to criminal justice policy was to depart from the long-standing, all-party evidence-driven consensus on crime and justice which can be summed up in the idea that prevention works, punishment does not and rehabilitation is not only humane but effective. Though there were differences on the details, the fundamentals were uncontested until the arrival of Harper’s “crime agenda.” The various pieces of the “crime agenda” was – in its essence – not about crime at all, but about punishment, specifically about torqueing up levels of punishment and being mean toward those in conflict with the law. Commenting on the monster omnibus Bill C-10, Justice Melvyn Green observed that the Harper crime agenda seemed “primarily driven by an ideology of unabashed Puritanism, marketed through fear-mongering and the invidious exploitation of communal differences.” More than anything else, in my view, the Harper punishment agenda was driven by the optics of being tough – by the requirement to be seen to doing something, even the wrong thing. “Get tough” always finds a constituency among the ill informed and easily inflamed. Below are the broad areas of agreement in summary form with which the Harper government broke.

Crime is about more than individual choices

The Harper government was averse to committing acts of sociology, preferring to understand everything about crime through the narrow lens of methodological individualism, that philosophical method that – at least in principle – reduces every social phenomenon to the decisions of persons who, if they so choose, can act rationally. Prior to the Harper government, law makers agreed on the limited utility of the criminal justice system to reduce crime. They did not expect the criminal justice system to reduce rates of crime. They understood that the long term protection of society lay in crime prevention and in addressing the social circumstances that give rise to crime. But the Harper agenda broke with this understanding, preferring to view offenders as inherently bad persons to be forever distinguished from law-abiding people and stigmatized accordingly. As justification for the 421 percent increase in the cost of applying for a pardon – under the 2011 record suspension provisions – the Minister of Public Safety was quoted as saying that “ordinary Canadians should not be having to foot the bill for a criminal asking for a pardon.” In the government’s view, “offender” is a permanent identity. Not only was this bad policy – seen from a restorative perspective – it was unnecessarily mean from a human perspective. This meanness pervaded the Harper punishment agenda.

Punishment doesn’t work

Few things in criminal justice are as well understood as the in-efficacy of punishment to deter crime. Canadian governments have, until the Harper years, understood this – and they have also understood that punishment can, in fact often does, make worse what is already bad. Hence the consensus among law-makers on using a sentence of incarceration to rehabilitate with programs and educational training to the extent possible and however imperfectly. The Harper government’s emphasis on ratcheting up punishments – lengthening sentences and making conditions worse through overcrowding – overturned this consensus without any visible consideration for the downstream consequences once prisoners are returned to their communities. For the fact is that almost all prisoners are eventually returned – but the Harper government appeared to have no interest in who these people were when they were released. Were they better for the experience, the same as when they went in, or worse as a consequence of harsh conditions? A civilized, mature democracy like Canada has an interest in ensuring that – as much as possible – a person should not be worse for the experience of incarceration upon return to the community. The Harper government expressed little interest in these questions.

Evidence should drive policy

While every government and minister over the decades has had their priorities, changes to the criminal justice or correctional systems were products of discussion. Details were left to career experts who answered to elected politicians. Broad consultation was the norm, evidence mattered and stakeholder input was sought and even valued. Canada has a long history of criminal justice policy evolving as a result of commissions of inquiry, government or parliamentary committees. These took time and were comprehensive in their scope, employing the best minds of their time. As a result, criminal justice policy was less partisan. Work begun under one government could be completed under another, e.g., the Corrections and Conditional Release Act. When Stockwell Day – as Public Safety Minister – struck the committee that produced A Roadmap to Strengthening Public Safety, he signaled that the Harper Conservatives were turning their backs on this tradition of deliberation, respect for evidence and deep reflection on principles of jurisprudence. The Roadmap’s purpose was to launch a “transformation agenda” to accommodate the expected growth in our rate of incarceration. The 13 item mandate would have – under normal circumstances – taxed the best correctional and justice brains in the country and consumed a year or more in research, travel, consultation and deliberation. From his prison cell in Florida, Conrad Black excoriated the Roadmap as “the self-serving work of reactionary, authoritarian palookas, what we might have expected 40 years ago from a committee of southern U.S. police chiefs … counter-intuitive and contra-historical [supplying no evidence] to support any of the repression that is requested.” (National Post, May 29, 2010). Other commentators used less florid language to come to similar conclusions.

Substance Trumps Optics

When Stockwell Day argued that Canada needed more prison spaces to contend with the rising rate of un-reported crime, he was articulating a theory of politics as theatre; “What you do is less important than what you say you’re doing.” The previous Liberal government had introduced mandatory minimum sentences to blunt opposition to its long-gun registry, but the Harper government made a practice of putting good politics ahead of good policy. It was no longer an exception to the pattern of Canadian jurisprudence, it became the pattern. The Justice for Animals in Service Act (2014) was named for a police dog – Quanto – killed in service. It creates a new offense of killing or maiming a police or military animal even though comparable laws already existed. In 2012 the Protecting Canada’s Seniors Act required consideration of evidence that the offense had a significant impact on the victim – which judges already do. There were too many examples of this “optics trumps substance” to enumerate.

Sentencing Policy

Law makers know – rhetoric aside – that there is little they can do in the space of a mandate to bring about real changes in crime rates. At least they will tell you they know this when there are no microphones or cameras around. This was true, in my experience, even of Harper’s backbenchers. But they also know that to be seen to be doing nothing is worse than doing the wrong thing, so Conservative MPs attended Committee Hearings and voted en bloc for sentencing enhancements for which there was either no evidence of effectiveness or for which the evidence pointed in the opposite direction – or for which harsh sentences already existed. Of these the most egregious was mandatory minimum sentences. There is a large evidence base on which to conclude with some confidence that these do not work – and this has been known for a long time because of their wide application in the United States. Mandatory minimum sentences have the virtue – practically speaking – of being simple to enact, requiring only modest changes to language, and are easy to sell to voters. The research demonstrates that severity of sentence – length of incarceration – does not deter nearly as effectively as certainty of apprehension. But certainty of apprehension is hard to assure whereas harshening sentences is easy to do and – more important – easy to market. Summing up the research, Michael Tonry observed that “studies show judges and juries tend to avoid having to impose mandatory sentences, that such penalties have no deterrent effect (or a temporary one), and that sentences are not consistently applied.” But Tonry, alas, is one of those “elite statisticians” disparaged by Prime Minister Harper and therefore the evidence from the American experience was not permitted to inform the government’s crime agenda.

Restoring Canada’s Standing in Corrections and Conditional Release

We can restore Canada’s once-leading status in corrections primarily by depoliticizing policy-making, by renewing our commitment to rehabilitating offenders, and by replacing the theatrics and symbolism of “on side with victims” with real reforms guided by evidence. The following is a list of minimal conditions.

First, ratify the 2002 UN Optional Protocol to the Convention Against Torture and Implement the Mandela Rules (updating the U.N. Minimum Rules for the Treatment of Prisoners). Most Canadians think of themselves as leading the world community in the adoption of human rights conventions – our appalling record on aboriginals notwithstanding – and of pressing other countries to do the same. That has been true for most of our post-World War II history. But for reasons never disclosed the Harper government refused to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment or implement the Standard Minimum Rules for the Treatment of Prisoners. These conventions signal to the global community that a country is serious about improving its human rights record toward prisoners. The Trudeau Liberals could endorse and ratify these conventions as part of a more general pendulum swing back to principles-based corrections and evidence-driven justice policy.

Second , limit the duration of solitary confinement/administrative segregation of prisoners and ban its use for prisoners who are mentally ill. Increasingly our prisons have become dumping grounds for the mentally ill – as our police officers have become front line social workers. Administrative segregation has become the default for correctional managers contending with overcrowded facilities and diminishing resources, thus increasing the harm of already harsh conditions of confinement.

Third, ensure that all Bills tabled in Parliament comply with the Charter and make public the Charter analysis of proposed legislation, including s. 1 evidence. A curious feature of the Harper era was the routine introduction of Bills to Parliament that had not been ‘charter tested’ by the Department of Justice – and their subsequent defeat in the courts. This was a waste of money and an abuse of process for no higher commitment than ideological purity.

Fourth, introduce correctional reforms to reduce crowding, curb violence, ensure access to medical services and respect the human rights of prisoners. A predictable consequence of the Harper agenda was overcrowding. Every correctional expert – in and out of government – warned that this would have bad consequences for correctional outcomes, for reintegration and recidivism. The Harper government was not interested. Furthermore, no correctional system has ever built its way out of overcrowding – and California was ordered to release thousands of persons because the overcrowding violated basic constitutional norms and threatened the health of inmates and staff. The Harper government tried to do three things simultaneously: grow the rate of incarceration by expanding the pool of new inmates; keep prisoners in for longer duration; while cutting costs on a per prisoner basis. This put unreasonable stress on a government department already straining to attract and retain urgently needed human resources, like psychologists, correctional programmers and institutional parole officers.

Fifth, commit to respecting the presumption of innocence and reduce the number of people in pre-trial detention. Our remand situation, numbers in pre-trial detention, is beyond crisis. The numbers are shocking, particularly among aboriginal and low income populations. They show Canada in a very poor light. The Harper government inherited a bad problem and made it worse.

Sixth, adopt a drug strategy premised upon harm reduction, prevention, and treatment for the illness of addiction. Addiction to drugs, gambling, shopping, sex, whatever, is increasingly seen as an illness – chronic to be sure – that can be managed and in some cases overcome; which is to say that it is no longer understood as a moral failure to be punished. The new science argues that addiction is a feature of the human condition that correlates with prolonged psycho-social dislocation, which is why some populations seem more susceptible than others, but that only rarely responds to punishment. The appropriate response, therefore, is to find ways to confine the harm of problematic behavior to the individual. This marks a contrast with the 19th Century preference for punishment which had the effect – unintended to be sure – of socializing the cost of individual behavior to the community through the criminal justice system, courts, prison and lifelong stigmatization. We are now in a position to acknowledge that we get bigger bang for the buck through prevention and treatment and, where these fail, harm reduction. The second breakthrough is the realization that addiction is almost always preceded by some form of mental illness – often undiagnosed and untreated – by as much as a decade. Practitioners on the front line have known this for a long time, and have moved to implement programs where policy space permitted. But policy makers have been slower to accede to the gathering evidence either for ideological or electoral reasons. As a result, Canada now lags comparable jurisdictions in modernizing our correctional system’s ability to introduce harm reduction strategies.

Seventh, encourage effective non-criminal justice responses or community-based sentences for mentally ill, brain injured, cognitively impaired or addicted individuals. “Prisons,” it was said by the British Home Secretary, “are an expensive way of making bad people worse.” Increasingly sophisticated assessment instruments reveal that a large percentage of incarcerated persons arrive with a spectrum of cognitive disorders including depression, anxiety, fetal alcohol syndrome, acquired head injury, Asperger’s syndrome and learning disabilities. In other words, our prisons are warehouses for persons with mild-to-severe brain disorders which were either undiagnosed or untreated and which inhibited their success in school, impaired their executive functioning, undermined their impulse control and made them more likely to fall into behavior some of which is criminal. Some prisoners simply chose bad parents. Persons with a mild brain disorder can appear to function adequately in tranquil circumstances but find themselves overwhelmed in highly charged environments, or under the influence of alcohol, because their ability to reason about the future is compromised. Some of these people do well in a highly routinized prison setting where they don’t have to make decisions for themselves while others get markedly worse. It is important to know which groups would benefit from community-based responses and which would not and to direct resources accordingly. They cannot be punished into good behavior as Harperian ideology would insist. Community-based sentencing is not only more humane for such people, it is less expensive – both in dollar terms and in the long-term cost to the community. A high percentage of offenders committed their index offence – for which they were incarcerated – under the influence of an intoxicating substance like alcohol. Many are addicted to some substance at the time of their arrest and many of these have already had contact with the mental health system.

Eighth, restore judicial discretion if a mandatory sentence or fine would be disproportionately harsh given the facts of the particular case. Mandatory minimum sentences are the most studied phenomenon in criminal justice as a consequence of their wide and staggered employment across the multiple jurisdictions of the United States. There are few other features of a criminal justice system on which virtually all scholars agree: mandatory minimum sentences don’t produce the outcomes advertised for them. They distort the sentencing process creating more harm than good. They are ‘feel good’ and ‘bumper sticker’ penal populism at its worst.

Ninth, implement an independent review process for the wrongfully convicted. Canada should also re-establish a sentencing commission to restore coherence in our judicial, sentencing and correctional policies.

Tenth: Support prison reform that includes rehabilitation programs, educational opportunities, labour market training and certifications, and ‘through the prison gate’ reintegration support. Prisons are expensive; community-based programs are cheaper and more effective for many offenders. Given the composition of the population streaming through our prisons and jails – low school attainment, undiagnosed or untreated mental disorders, mild-to-severe cognitive deficits, personality disorders, fetal alcohol syndrome, learning disabilities, poor impulse control, addictions, etc. – it is prudent, humane and principled for a correctional system to do everything it can during a sentence of incarceration to ensure that a prisoner will not return once released. Canada was once a world leader in correctional rehabilitation but it fell behind with the politicization of our criminal justice system and the rise of penal populism. Reinstating the prison farms and encouraging pro-social co-operatives for prisoners would move in the right direction. Canada has much to learn from the low rate of incarceration jurisdictions in Scandinavia.

Eleven: Support an overhaul of the graduated release system to promote effective, humane, and safe reintegration of federal prisoners back into society. No system for safe reintegration of prisoners into society has shown better results than graduated release. Had the Harper Conservatives been re-elected, there is little doubt they would have sought to abolish this system of reintegration at enormous cost to prisoners, provinces and society.

Last, reform the record suspension/pardon system to make it more efficient, economical, and fair. Like most other aspects of the Harper era, the new “record suspension” rules are punitive and populist while doing nothing to ensure that former offenders – who have demonstrated good will and stayed out of trouble – can reclaim their lives.

Conclusion: A Return to the Evidence of “What Works”

There is a lot of work to be done. Some of it will meet resistance from the Conservative opposition irrespective of how much support it finds in evidence or principle. More than any other single item, if the Trudeau Liberals can de-politicize the correctional and justice domains and swing the pendulum from expedience to principle, from symbol to substance, the path will be cleared for a return to evidence, science and best practices. Mr. Trudeau has already made one important step in that direction by calling for the legalization and regulation of cannabis. There is ample justification for this long overdue decision. Let us hope that evidence-informed policy ideas continue to flow from the same source.

Photo: Benoit Daoust / Shutterstock.com