Some decriminalization measures have clearly backfired. But Benjamin Perrin offers plenty of examples of alternatives to the status quo that are worth exploring
NationTalk: Vancouver Sun: In the now world-famous viral video, Pierre Poilievre needled a hapless journalist by asking for examples of his supposed “populist” approach, all the while casually munching on an apple.
The reporter fumbled for a response but a few minutes into their interview, Poilievre offered up an archetype of his own. On the subject of safe streets, he said a Conservative government would “bring in jail, not bail” for repeat violent offenders.
It was the kind of simple solution to a complex problem that appeals to voters exasperated at terrible crimes such as the murder of Ontario Provincial Police officer Greg Pierzchala last December. The alleged shooter, Randall McKenzie, was out on bail, despite assault and weapons charges, because a judge noted his Indigenous background.
Poilievre’s “tough on crime” stance echoes that of Stephen Harper, who famously recited his “do the crime, do the time” mantra as a justification for the introduction of dozens of mandatory minimum sentences.
Harper’s senior legal adviser in 2012–13 was Benjamin Perrin, an enthusiastic supporter of the “tough on crime” approach the Harperites were convinced was responsible for reducing crime rates (even if there is an even more plausible argument this was a pre-existing trend that started in the 1990s and had nothing to do with sentencing).
But Perrin doesn’t think that way anymore. In fact, in a conversion worthy of Paul the Apostle, his new book — Indictment: The Criminal Justice System on Trial — argues for the need for a complete re-invention of justice in Canada.
“This crass cynical game is destroying lives and it has to stop,” he writes.
Perrin, a professor at Peter A. Allard School of Law at the University of British Columbia, explained that, while he has always thought of himself as a Christian, it is only recently that he began following Jesus. “This change of my heart and outlook has been transformative in challenging my previously held views on criminal justice,” he said.
“I unreservedly apologize for my role in perpetuating the criminal justice system and supporting ‘tough on crime’,” he said. “(Harper) was responsible for his decisions. But I am responsible for the advice I gave or didn’t give. I deeply regret those past actions and now recognize these laws disproportionately impacted marginalized communities, without making Canadians any safer.” He said he will donate any royalties from his book to help “survivors” of the justice system.
Perrin insists that it is the glaring nature of the evidence, as much as divine revelation, that has changed his mind.
In his research, he talked to criminologists, prosecutors, defence counsels, chiefs of police, Indigenous leaders, public health officials, correctional officers and, crucially, former inmates. (Among them, Courtney from Yukon, who attempted suicide, was saved by a blood transfusion, and was then locked in a segregation cell for three weeks.)
Perrin’s thesis is that the common thread in the story of most criminals is trauma — and that the justice system doesn’t know anything about trauma. In such circumstances, one lawyer said the principles of denunciation and deterrence are like “putting a Band-Aid on a bullet wound.”
The clinical term “adverse childhood experience” is not randomly distributed throughout the population, which explains why Indigenous, Black and ethnic Canadians are over-represented in prison.
Indigenous Canadians represent five per cent of the population but in 2021 were a staggering 32 per cent of the federal prison population. The Gladue decision of 1999 required judges to consider Aboriginal heritage in sentencing. Yet these guidelines have had no discernible impact on incarceration rates that have kept on rising.
Perrin notes that Canada’s Black population is also over-represented, something he ascribes to “the intergenerational trauma of discrimination and violent policing” that makes people feel they are “outside our society.” He pointed to Statistics Canada data that suggest one in five Black people have no confidence in the police, which is double the proportion of white people.
It’s clear that Poilievre’s “jail not bail” pledge would exacerbate that over-representation, given Indigenous and Black people and people with mental health issues already have difficulty getting bail.
Incarceration rates in Canada that have remained steady at around 107 per 100,000 of population in 2021/22 (well down on the 141 per 100,000 in 2008/09) look set to shoot back up if Poilievre forms government.
Correctional Services Canada estimates that in the cases of half of federally incarcerated prisoners, substance abuse directly or indirectly contributed to their offences. Perrin argues that we do not have a crime problem as much as we have a substance-use problem, which is often a trauma problem.
To Poilievre’s credit, he appears to appreciate this. Later in his “apple” interview, he said a Conservative government will put more money into treatment of substance abuse. “Treatment is the only way out. Treatment is the answer,” he said, citing the example of a centre in Winnipeg that uses sweat lodges for First Nations offenders and “doesn’t just throw them back on the street” but “creates a smooth runway into a drug-free life.”
Perrin noted that prison exacerbates pre-existing mental health challenges. People with substance abuse issues are often ordered to get treatment, but waiting lists can be six months long and are inaccessible without a medical exam that can’t be obtained in jail. “A six-month wait-list might as well be a lifetime for anyone struggling with addiction,” Perrin writes. “Jails treat people in a way that all but ensures repeat business.”
He pointed out that Conservatives should be outraged on fiscal grounds, estimating that we spend up to $25.5 billion every year on criminal justice. The cost of just one federally incarcerated prisoner is $318 a day, or $116,670 a year. “Excessive use of incarceration has enormous cost implications,” he said.
Perrin prescribes a radical alternative based on what he calls “transformative justice.” He said the fundamental design of the current system is at the root of its failures: that crimes are conceived as a wrong against the state; that the reductive nature of the system distills an offender’s behaviour to a single moment in time, to be proven and then punished; that it is an imposition on Indigenous people that suppresses their laws; that its punitive philosophy pays mere lip service to rehabilitation; and, that it overuses incarceration as a tool.
Perrin insists that “a different way is possible.” The core philosophy of the transformative justice he advocates requires more proactive intervention to mitigate adverse childhood experiences. It means not criminalizing people who use substances or have mental health conditions. It demands the reallocation of resources from police forces to non-police mobile crisis teams. It requires the use of restorative-justice opportunities, involving people who were harmed and those who caused the harm. It necessitates the abolition of traditional prisons and expanding community-based alternatives, only separating people from society as a last resort. And it affirms the right of Indigenous people to self-determine their own criminal justice matters.
Reasonable people can argue about policy. Some decriminalization measures have clearly backfired, such as the safe-supply program that turns out to be subsidizing the use of fentanyl because users don’t get high enough from government-supplied hydromorphone and so sell it to buy their drug of choice.
But Perrin offers plenty of examples of alternatives to the status quo that are worth exploring further, such as restorative justice where the state’s role is minimal and the offender has an obligation to make things right with his or her victim. Or a more humane approach to jail, such as Norway’s Halden prison, where the focus is on rehabilitation and the deprivation of liberty is considered punishment enough. Prisoners at Halden have the same rights as other Norwegians, save the restriction on their mobility, and enjoy gardening, yoga, playing cards or going for a stroll. The recidivism rate there has fallen to 25 per cent after five years, which compares favourably to Canada’s nearly 40 per cent, and 60 per cent among Indigenous inmates.
It is easy to poke holes in Perrin’s remedies. It is far harder to argue that the current system is working. Or that it is likely to be improved by locking up even more sick people.
“‘Tough on crime’ has only made things worse. I’d like to officially replace it with ‘stupid on crime’,” Perrin concludes.
Author of the article:
John Ivison, National Post