Never in my career have I seen such a meticulous list of criminal justice commitments as the Harper government has made in every campaign. No hidden agenda at all – just a very clear checklist of items. And for the most part, they have been scrupulously put into action. Not always exactly as written. For example, C-12 aka ”œDrug-Free Prisons”, has about as much to do with removing drugs from prisons as my Swiffer mop does. But the bill does contain the words ”œdrugs” and ”œprisons” so it is being spun in circles in the hopes that no one notices how hollow it is.
And some commitments, as noted in a previous post, have been tabled in Parliament but with no intention of ever actually implementing them. See for example, C-60 and its unworkable notions for removing foreign offenders from Canada.
And yes, some commitments have surprisingly not seen the light of day as we near the end of the Parliamentary session. Even with scores of criminal justice bills on every imaginable subject and then some, there are by my reckoning two promises that seem to have been too far out in the stratosphere.
One dates from the 2006 campaign: ”œwork for a Constitutional amendment to forbid prisoners in federal institutions from voting in elections”. Well, full points for being ambitious. But as with Senate reform, perhaps even Mr. Harper has come to realize that Constitutional amendment is a dream too far. But before any partisan smugness arises, remember that both the Progressive Conservatives and the Liberals fought inmate voting rights with their last ballot boxes. In 1982, the Canada Elections Act barred all prison and penitentiary inmates from voting in federal elections. But along came Section 3 of the Charter, guaranteeing ”œevery citizen of Canada” the right to vote. In litigation commenced not long after, Mr. Rick Sauvé sought to have the Canada Elections Act prohibition struck down. Finally successful before the Supreme Court of Canada in 1993, the matter did not end there as the federal government re-legislated with a prohibition only against penitentiary inmates voting. Mr. Sauvé returned to court, and finally in 2002, a 5-4 majority of the SCC struck down the new law as a violation of section 3 and not saveable under section 1.
And inmate voting continued on just as it had been in provincial elections, completely without problem. The actual voting process is administratively straightforward. Inmates may vote in the riding of the penitentiary, or in their last home riding. Research has shown that even if all the inmates in one riding with penitentiaries voted as a block, it would still not ”œskew” the overall riding results. Inmates come from all walks of life, and support different political parties for reasons having nothing to do with criminal justice policies.
But for some, the argument persists that those who have broken democracy’s laws have lost the moral authority to participate in the democratic process. ”œFelony disenfranchisement” is still alive and well in the U.S.: all but two states (Maine and Vermont) prohibit voting while an inmate; 35 states also prohibiting persons on parole and/or probation; and four states extend the ban to lifetime for ex-felons. The Sentencing Project in Washington, D.C., devotes a significant part of its considerable work to the issue, see sentencingproject.org.
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And thus the 2006 Conservative promise, still swaying in the breeze nine years later and unlikely to be acted on given the existence of our Charter. Mr. Sauvé is also still alive and well, and working in criminal justice. Should Mr. Harper ever decide to jump off the Constitutional cliff, I suspect Mr. Sauvé will be more than happy to meet him mid-flight.
The other unfulfilled criminal justice commitment is a rarely-noted one from 2008: ”œAmend the Criminal Code to make the pregnancy of a woman an aggravating factor in sentencing if a woman is assaulted or killed”. Tellingly, the commitment goes on to say ”œThis new legislation will not open the issue of fetal rights. A Conservative Government will not initiate or support any legislation to regulate abortion.”
Well. A person would love to have been a fly on the wall when this commitment was subsequently discussed at a checklist meeting. One strongly suspects that the second and third sentences came to be seen as a quagmire that would out-strip any potential benefit from legislating the first sentence, particularly within the Conservative ranks since a number of members would very much like to open the issues of fetal rights and abortion regulation.
Perhaps someone in the senior ranks noted that statutory aggravating factors are often just window-dressing in any event, as there is substantial case law regarding aggravating and mitigating factors in sentencing (victim vulnerability included). In fact, the Criminal Code lists no mitigating factors, but that does not diminish their force at common law.
And so with perhaps just a handful of sitting weeks to go, these two commitments continue to languish. Aaahh, electoral promises – damned if you do and damned if you don’t. Too specific, and they can come back to haunt in painful ways. (Not to mention the severe dyspepsia they can cause the public servants (hello Liberal Red Book 1993….).) Not specific enough, and well, ask Kim Campbell how that went. To be continued….