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Reality Check

Doing the crime and doing the time By Ira Basen, CBC.ca Reality Check Team | Jan. 5, 2006 | More Reality Check

The shooting of a 15-year-old girl in Toronto on Boxing Day has pushed crime onto the electoral front burner. There are significant differences among the parties on how to stem the rising tide of gun violence that has plagued many of Canada's major cities, especially Toronto. Some of the sharpest differences revolve around the question of sentencing: should there be more mandatory minimum sentences for drug and gun crimes, and should judges continue to hand out " conditional sentences" which are designed to help some offenders rehabilitate in the community rather than behind bars?

These are emotional issues being debated in the hothouse atmosphere of an election campaign. Fortunately, a great deal of research has been done in Canada and elsewhere on the subject of sentencing and its impact on crime. Unfortunately, it is unlikely much of that research will be discussed during this campaign. Here's some of what we know �..

Mandatory Minimum Sentences

In Canada, there are currently 29 offences in the Criminal Code that carry mandatory minimum prison sentences. The majority (20) are for crimes involving firearms, with minimum sentences ranging between one and four years. Ten of the offences carry a four-year minimum. Other mandatory minimums cover offences such as murder, treason, child-prostitution, betting, and impaired driving.

Mandatory minimums tend to be popular with many politicians and voters who believe that too many criminals are allowed to pass through the "revolving door" of the judicial system and end up back on the street. They are much less popular with judges who want to maintain the flexibility to make sentencing decisions based on the merits of the situation. They don't like politicians dictating to them about sentencing.

Where the Parties Stand

In late November, the government introduced legislation that would have increased mandatory minimums on three firearm offences from one to two years, and add two new firearms offences to the Criminal Code, but that bill died when the government was defeated days later.

In this campaign, the Conservatives are by far the most enthusiastic about mandatory minimums, portraying them as important building blocks in their program to "fix our criminal justice system". The Conservatives want to increase the number of mandatory minimums for firearms offences from 20 to 24. Sentences that currently carry a one-year minimum would now be five years, and four-year minimums would be increased to 10. They are also calling for mandatory prison sentences for serious drug trafficking, crimes committed while on parole, and for repeat offenders.

Liberal Justice Minister Irwin Cotler is on record as saying he is "philosophically" opposed to mandatory minimums. He has also said he is not convinced they are effective, nor does he believe they work as a deterrent to crime. But he has not eliminated any mandatory minimum sentences, nor has he ruled out introducing new ones. The NDP crime platform calls for increasing mandatory minimums for the illegal possession, sale and importation of restricted weapons from one year to four.

The American experience

Both supporters and opponents of mandatory minimum sentencing look to the example of the United States, which has been experimenting with the idea since the "war on drugs" was launched in the 1970s. New York was the first state to take sentencing out of the hands of judges and put it into the hands of legislators. Lengthy sentences - 15 years to life - were mandated, even for non-violent, first-time offenders, many of whom would have previously received brief sentences, drug treatment, or community service. Other states quickly jumped on the mandatory minimum bandwagon. The most notorious was California, which passed its Draconian "Three Strikes" law in 1994. It called for a mandatory 25-year prison term upon conviction of any felony for people with two previous convictions.

Not surprisingly, mandatory minimum sentencing led to a dramatic increase in both the number of Americans incarcerated, and the cost of building and maintaining prisons in states where those laws applied. In 1999, approximately 6.3 million adults-3.1 per cent the U.S. adult population-were under correctional supervision (that is, incarceration, probation, or parole). Drug offenders accounted for 21 per cent of the State prison population in 1998, up from 6 per cent in 1980. That number continues to grow, despite an overall drop in the crime rate.

Many supporters of mandatory minimum sentencing point to the decrease in crime as proof that the program works. But several studies have cast doubt on whether these laws really keep hardened criminals off the street and deter others from committing crimes, and there appears to be no significant difference in crime rates in states with mandatory minimums and those without. Most experts attribute the falling crime rate to demographic and economic factors that have nothing to do with sentencing.

Serious questions have also been raised about the use of mandatory minimums as a weapon in the war on drugs. In 1993, U.S Supreme Court Justice William Rehnquist noted that mandatory minimum sentences tended to allocate scarce prison space to low-level criminals (the "mules" in the drug trade) rather than those higher up the chain of command. A study by the Rand Corporation concluded that minimum sentencing has done little to keep illegal drugs off America's streets, and that the money spent locking up people for drug possession and trafficking would have been better spent on treating drug users.

And it is a lot of money! The cost of fighting crime in the U.S., for police, prison and courts has risen at an extraordinary rate, jumping 350 per cent since 1982. Americans now spend about $40 billion a year on incarceration. By the mid-1990s, governments in California and New York were spending more on prisons than they were on higher education. One Republican New York State senator concluded, "they [mandatory sentences] have not stemmed the drug trade. The only thing they've done is to fill the prisons". With little incentive to plead guilty, more defendants have been opting for costly jury trials. The pre-trial jail population has been increasing, requiring the construction of more prisons and the hiring of more people to guard them. As a result, over the past few years, many states have begun to modify their mandatory sentencing laws, having concluded they were not only ruinously expensive, but counterproductive as well.

And American public opinion, which once solidly supported mandatory minimums as a way to get criminals off the streets, has now largely cooled on the idea. One survey showed that more than half of Americans polled in 1995 supported mandatory sentencing, but by 2001, that number had dropped to roughly one third.

Conditional Sentencing

Conditional sentencing is the flip side of mandatory minimums. Rather than focusing on incarceration, conditional sentencing is designed to keep some offenders out of jail and in the community. Often this means serving their sentence under "house arrest" in their own homes where they can continue to work or attend school. Conditional sentencing became part of the Canadian justice system with the passage of Bill C-41 in 1995. Canadian lawmakers were concerned with the overuse of incarceration as a means of addressing crime in Canada, particularly as it applied to aboriginals. Currently, aboriginals make up about 17 per cent of all inmates serving conditional sentences.

Not all offenders are eligible for the program. To be considered, a sentence must be less than two years long, must not be an offence that carries a mandatory minimum sentence, and the judge must be convinced the offender does not pose a danger to community. Inmates accepted in the program must also meet certain court-imposed conditions. Getting treatment for alcohol and drug abuse are the most common conditions, followed by curfews and community service. The average length of conditional sentence in Canada is eight months.

Not surprisingly, conditional sentences are highly controversial, especially in light of several high-profile cases of inmates who re-offended while out in the community. In January 2005, federal, provincial, and territorial justice ministers affirmed their support for conditional sentencing, but agreed that greater restrictions needed to be imposed when used for offences involving violence, personal injury or sexual assault.

Where the Parties Stand

Neither the Liberals nor the NDP have specifically addressed conditional sentences so far in the campaign. The Conservatives have linked their support for mandatory minimums with their opposition to conditional sentencing. They are proposing an end to conditional sentences for serious crimes, including designated violent and sexual offences, weapons offences, major drug offences, crimes committed against children, and impaired driving causing death or serious injury.

In a speech in the House of Commons on Sept. 26, Conservative justice critic Vic Toews attacked drug dealers who "are putting poison into children's veins and they are getting house arrest." The answer to the problem, according to Toews, is to "get the drug men and the gunmen off the streets and get rid of conditional sentences." "The Liberal government is killing our children," Toews concluded, "and it does not seem to care."

How accurate is the Toews portrait of the conditional sentence program? Not very. About 18,000 people receive conditional sentences in Canada every year, about 6 per cent of all sentences handed out. The largest group (32 per cent) is made up of those convicted of property crimes, including fraud. The second largest category (27 per cent) involves crimes of violence, then drug crimes (18 per cent) and driving-related offences (7 per cent). But since most gun crimes now carry mandatory minimum sentences, people convicted of those offences are already ineligible for conditional sentencing. There is no evidence that the hard-core "gunmen" who are causing mayhem on our city streets are people currently under house arrest.

About a third of the 7,000 people convicted in Canada for drug trafficking every year receive conditional sentences, but again, they tend to be the people occupying the lower rungs of the drug food chain. Justice Department statistics show that only 15 per cent of inmates in the program breach their conditions, and in most cases, those breaches involve violating their conditions, not committing crimes. There is no significant difference in the recidivism rate of inmates serving their sentences in institutions and those serving them at home.

The Cost

But there is a substantial difference in the cost of incarceration versus house arrest. In Ontario, it costs the provincial government approximately $1,600 a year to supervise an inmate under house arrest, double that if the inmate is being monitored electronically. That same inmate in a provincial jail would cost about $52,000 a year. The Conservative proposal to eliminate conditional sentencing for drug offences and those involving violence could put an additional 6,000 offenders every year behind bars. If they stayed there for a year, it would cost an extra $300 million just to incarcerate them.

The Conservative plan to increase mandatory minimum sentences by as much as six years will also add to significant increases in the cost of administering the federal criminal justice system. It costs Corrections Canada $110,223 to keep a male inmate in a maximum-security institution for a year ($150,867 for a woman). Medium- and minimum-security inmates cost more than $70,000 a year.

But that is not where the money stops. Federal and provincial institutions are already filled to capacity. The Conservative proposals would inevitably spark a wave of new prison construction, and prisons are not cheap to build. The last provincial jail built in Ontario was a "no-frills" superjail in Lindsay that cost almost $79 million in 2002, and is designed to house about 1,100 inmates. Constructing new jails just for the 6,000 inmates who would have previously been out under house arrest would cost Canadian taxpayers about $400 million. Would that investment make our communities safer? Most of the evidence indicates that the answer to that question is no.

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