Remarks for Howard Sapers

Correctional Investigator of Canada

Annual Conference of the McGill Institute for the Study of Canada

Crime and the Law: The Future of Justice in Canada

Friday, March 16 @ 2:00 pm

McGill Faculty Club

Montréal, QC




Plenary Session 4: Sentencing and Imprisonment

What will be the effect of new sentencing guidelines on the Canadian social fabric? On the functioning of the justice system? What are the key issues facing Canada's correction systems in the light of an aging population, increased social diversity and a possibly stagnant economic climate? What might Canada learn from other countries in the area of sentencing and imprisonment policies and practice?

  • Michael Jackson -University of British Columbia Professor of Law and Aboriginal Rights Activist

  • Howard Sapers -Correctional Investigator of Canada

  • Steve Sullivan -Executive Director, Ottawa Victim Services and former Federal Ombudsman for Victims of Crime

Moderated by Alana Klein -McGill University Faculty of Law

It is an honour to be part of this conference and a particular pleasure to join this panel. My thanks to the organizers for including me.

There has been lots of discussion over the last day about being either hard or soft on crime. So let me begin with a question: What does it mean to be soft on crime? I have been around the system for a long time and have viewed its workings from many different angles, and I can tell you that I have never, ever met anyone who wants to be soft on crime. I don't know anyone who wants people to get away with murder or get off "scot-free." Appropriate responses to crime require serious deliberations, not bumper stickers. It's time to elevate the debate.

My remarks today speak to the purpose of incarceration and the principles of corrections in a free and democratic society. I will also describe who it is that populate our prisons and jails. I will raise questions about who we incarcerate, for what crimes, for how long and why.

Let me start by stating the obvious: that the criminal justice system is not about private harm and exacting personal vengeance. It is about the public good and the maintenance of public order. The state prosecutes, convicts and punishes offenders on our behalf. We do not, and should not, leave the pursuit of justice to individual victims. Individuals cannot be expected to act in the public interest when they have suffered a significant personal loss.

Of course, loss must be acknowledged, and measures must be in place to give victims voice, help them heal, find closure and be restored to the extent possible. Clearly, however, this is beyond the mandate and ability of our criminal courts. It is equally clear that more needs to be done to achieve these ends. That being said, I don't believe that we best serve victims by heaping unrelenting punishment upon offenders.

The role of the courts is to determine guilt and impose consequences. The sentencing judge must not only consider the law, but must also take the nature and gravity of the offence into account. The punishment is to be proportionate to the harm done after considering aggravating and mitigating circumstances. Sentencing decisions, to be effective, must be highly individualized. No two offences or offenders are the same, just as the impact of crime lands differently upon different victims.

The same is true in post-sentence decision making. Parole hearings for example are not about or for victims - they are about assessing the offender's readiness to return to the community. Release decisions evaluate the risk of re-offending; they are not about the harm done in the past.

Indeed, once the court passes sentence, questions of seriousness, proportionality and responsibility begin to fade into the background. The courts have already taken these factors into account and pronounced judgement. Correctional authorities need to be mindful of the courts' reasons, but their job is administrative, not judicial, in nature. The sentence is to be carried out without adding to the punishment imposed by the courts. It is not the responsibility of those who run prisons to determine if punishment has been sufficient. As the old saying goes, "Offenders are sent to prison AS punishment, not FOR punishment." Correctional practice is governed by a legal framework that empowers the state to only interfere with the life and liberty of the incarcerated to the minimum extent necessary.

Inmates retain all rights, except for those that are muted by the sentence itself. The rule of law follows an offender into a penitentiary; legality does not stop at the prison gate.

I offer these comments to establish a context for understanding my concerns about who is ending up behind bars these days. The face of corrections is changing in Canada - offenders are getting older, they are more addicted, they are more diverse and they are more mentally disordered. The average level of educational attainment upon admission is grade 8. Visible minorities, Aboriginal people and women are entering correctional facilities in greater numbers than ever before. One in five federal inmates are aged 50 or older. 36% are now identified at admission as requiring some form of psychiatric or psychological service or follow-up. 20% is of Aboriginal descent and 9% of inmates are Black Canadians. In the last 5 years, the number of federally incarcerated women has increased by almost 40%. Over the last decade, the number of Aboriginal women in federal custody has grown a staggering 86%.

The use of prison is a barometer for measuring the success or failure of key Canadian social policies. Clues to how we have chosen to respond to homelessness, poverty, addiction, mental illness, unemployment and vocational preparation can be found by studying prison populations.

The point here is that prison reflects society; it is not separate from it. Just as Canadian society is growing older and more diverse, so too is the inmate population. This changing and complex profile is placing increasing pressures and strains on the correctional system to provide safe and secure accommodation and custody, meet growing mental health and physical health care needs, and respond to the special needs of aging, minority and Aboriginal offenders.

Between February 2009 and today the federally incarcerated population increased by 1,100 inmates or 8.2%, which is the equivalent of at least two large male medium security institutions. The Correctional Service of Canada has plans to add 2,700 new or renovated cells to over 30 existing penitentiaries at a total cost of over $600M. Once built, it will cost Canadians an average of almost $110,000 per year to imprison a male offender in one of those cells, and nearly double that to hold maximum security women. Next year, CSC's total budget will exceed $3 billion for the first time ever. Close to 16% of the incarcerated population are now double bunked in cells designed for one inmate, a phenomenon which has increased by more than 50% in the past five years. Experience in Canada and elsewhere shows that as prisons become more crowded, they become more desperate, more violent and volatile places. Simply put, safety is compromised by prison crowding and effective corrections suffers as a result.

Questions about whom we incarcerate, for how long and why are public policy issues of the highest order - they say much about who we are as a society and the values we espouse as a country. It is a paradox that incarceration rates are climbing at the same time that crime rates are falling. In spite of the peaceful nature of our society more of our citizens than ever before are being sent to prison. Aboriginal people are incarcerated at rates that are nine times higher than for the rest of us. In fact, if not for steady increases in Aboriginal, female, mentally ill and visible minority offenders being put behind bars, the offender population in Canada would have flat lined long ago.

Close to one-third of federal offenders are serving a life sentence. Most 'lifers' will become elderly behind bars, and many will end up dying there. More offenders than ever before are spending more time in higher security levels. The use of long-term segregation to manage the mentally ill continues, despite the fact that isolation, seclusion and deprivation exacerbate mental illness. There are few, if any, correctional programs being delivered in the country's maximum security institutions. More of an offender's sentence is spent locked-up with limited movement and association. Statutory release, which mandates the release of all but the most high-risk offender, has eclipsed all other forms of conditional release.

Many offenders who pose little risk to public safety are spending more of their sentence behind bars rather than under supervision in the community. Day and full parole grant rates are at historic lows, as are work releases and other forms of discretionary release. This is not the way corrections in Canada was designed to work. After all, we know the public is best served by the gradual and timely reintegration of offenders.

As I said earlier, the purpose of incarceration is to prepare offenders for their safe, eventual release. The point of imprisonment is not to create good inmates. After all, the overwhelming majority of inmates are one day released, and the hope is that we are all better off for their carceral experience. Over 4 decades ago, the Report of the Canadian Committee on Corrections, commonly referred to as the Ouimet Report, expressed in clear and eloquent language what corrections could be. We would do well to find direction and inspiration in these words from the Report:

"Segregate the dangerous, deter and restrain the rationally motivated professional criminal, deal as constructively as possible with every offender as the circumstances of the case permit, release the harmless, imprison the casual offender not committed to a criminal career only when no other disposition is appropriate. In every disposition the possibility of rehabilitation should be taken into account."

In the final analysis, the legitimacy of imprisonment relies upon it being used as sparingly as possible. It is hard to imagine a society achieving its full potential by increasingly caging more of it citizens.