Speaking Notes for Howard Sapers
Correctional Investigator for Canada

"A Discussion on Criminal Justice Reform"
A Hill Times Event

March 10, 2016
Delta Ottawa City Centre

Ottawa, ON

Good morning.  Thank you to the organizers and sponsors of this event.  I am delighted to be here to share some opening remarks on the state of criminal justice policy in Canada as well as some pathways and prospects for reform.

Over the last decade we witnessed the pursuit of a self-proclaimed tough on crime agenda.  More severe and harsher penalties were seen as both the end and means of criminal justice, with the belief that crime could be managed through the expanded use of imprisonment alone.  Rhetorically, offenders were vilified, portrayed as dangerous, bad and often, unredeemable.  

While the philosophical direction was clear, the implementation of the vision was sporadic, piecemeal and reactive.  Sentencing reforms frequently lacked evidence.  There was little coherence in how new criminal law was articulated or applied.  As it turns out, judging by the growing number of court challenges, a good portion of recent policy – expansion of mandatory minimum penalties, mandatory victim surcharge, abolition of accelerated parole – was far from Charter compliant.

Many of the principles that guided our criminal justice system were muted or abandoned.   Proportionality and restraint in the use of imprisonment gave way to other objectives, usually framed in terms of enhancing public safety.  Creating fear of others, even in our relatively safe society became a central theme, in spite of year after year reductions in reported crime.

The Corrections and Conditional Release Act, for example,was amended to make public safety the preeminent purpose of the federal correctional system.  In so doing, other equally important goals of corrections, such as offender rehabilitation or community reintegration, were downgraded or displaced.  The "nature and gravity of the offence" and the "degree of responsibility of the offender," principles usually reserved for sentencing, were added to correctional law, becoming the new touchstones for how a sentence of imprisonment was to be administered.  Think about that.  Corrections administrators were now expected to manage a sentence based not upon the direction of a sentencing judge and the needs of the offender, but instead upon their assessment of how bad the crime and the criminal were. 

By the end of the previous government’s tenure, the discourse around crime and punishment had become so immoderate that it was possible to debate the merits of introducing life imprisonment without possibility of parole in Canada, a penalty which effectively equates to a living death sentence.  It was as if we were blind to the experiences of others who have gone down this failed path.  In the US for example, 1 in 9 inmates is now serving a life without parole sentence.  There are more than 50,000 prisoners across the United States who are sentenced to die in their prison beds.  Though this particular measure failed to make it through the last Parliament, new policy allowing for consecutive parole ineligibility periods for some offences gives practical expression to the phrase "life means life," and the goal stated by the former Minister of Justice that there be laws to ensure some inmates draw their last breath behind bars.  

There is little doubt that this policy agenda had a disproportionate effect on disadvantaged and vulnerable groups in Canadian society.  Between 2005 and 2015, the federal inmate population grew by 10% even though crime rates fell in each of those years.  Much of this growth came from steady increases in admissions of indigenous people, visible minorities, the mentally ill and women.  Over this period, the Aboriginal inmate population grew by more than 50% while the number of Aboriginal women inmates almost doubled.  The Black inmate population grew by 69%.  The incarceration rate for Blacks in Canada is now three times their representation rate in general society; and as much as ten times higher for Indigenous people.  

For young Indigenous Canadians, the criminal justice system has become what the residential schools were for their parents and grandparents.  In 2013/14, Aboriginal youth accounted for 41% of all admissions to custody in Canada.  Indigenous girls accounted for 53% of female youth admitted to custody.  Recently, the federal correctional system reached a rather ignominious first – 25% of the inmate population is now Indigenous.  That percentage rises to more than 35% for federally sentenced women.

In terms of outcomes and results, indicators of safe and humane custody predictably deteriorated over the past decade. 

The number of use of force incidents almost doubled, admissions to administrative segregation increased, incidents of prison self-injury tripled, prison crowding hit all time highs and parole grant rates bottomed out.  This institutional climate undermines good correctional practice and contributes to a poor working environment and challenging labour relations.

It bears reminding that the living conditions of inmates are the working conditions for staff.  We know that corrections professionals do their best work when carried out in an environment that protects and promotes human dignity, safety and rights, not undermines them. 

Our system of criminal justice – the police, the courts, corrections, parole and probation – is complex.  As is so often the case, complexity and cost go hand in hand.  Although the volume and severity of crime in Canada has been on the decline for more than 20 years, criminal justice expenditures have grown steadily.  Overall spending on the criminal justice system at the federal, provincial and territorial levels now exceeds well over $20 billion annually.  In 2013, policing costs alone totaled $13.6 billion, rising nearly 40% over the last ten years.

For that level of spending, criminal justice outcomes should be excellent.  Yet in spite of the best efforts of an overwhelmingly professional and competent cadre of practitioners, the current trends are not very encouraging. 

Except for the police (who enjoy the highest degree of trust) public confidence in much of the criminal justice system is persistently low.  There is a continuing belief, fueled in part by get tough rhetoric, that sentences are too lenient and that the system does not do a good job of rehabilitating offenders. 

As for the courts, Canadians have less than 50% confidence in their ability to help victims, provide justice quickly or even determine guilt or innocence. 

These perceptions are influenced by some serious problems slowing down, clogging up and adding complexity and costs to the justice system.  For example, according to a recent study commissioned by Justice Canada, the country’s bail system is "broken."  Today, in the provinces and territories, there are more people remanded to custody, either awaiting trial, bail or sentencing, than actually serving a court-ordered sentence.  Another way of putting it is half of all people detained in provincial and territorial jails are actually legally innocent. 

The criminal courts are backlogged.  The system is plagued by procedural delays and adjournments.  Administration of justice issues, not criminal charges, now account for more than one-fifth of all cases brought before the courts.  Approximately 1/8 of all accused going to court in 2013 had "failure to comply with a court order" as their most serious charge. Over a third of all completed cases in 2013/2014 involved at least one administration of justice offence.  These administrative infractions, not new crimes, are what is pushing more cases through the proverbial ‘revolving door’ of our courts.

In most components of our justice system, there is little tolerance for even well managed risk.  Depending on the offence, bail, probation and parole criteria has been gradually tightened or eliminated entirely. 

Even the process for obtaining a pardon, now called a "record suspension," has become more difficult, lengthy and expensive.  In the federal system, most offenders returned to the community are now released at statutory release (two-thirds of sentence) rather than through conditional release. The slowing rate of offenders returned to the community leads to higher and avoidable custody costs without a measurable contribution to crime reduction or public safety. 

Despite the problems and deficiencies, the situation is not without hope and a renewed agenda for Canadian criminal justice policy is not beyond reach.

On a priority basis, we need to restore some semblance of order and coherence to criminal law and procedure.  We might start with a principle driven top-to-bottom overhaul of the Criminal Code of Canada, including a review of mandatory minimum sentences. 

Canada’s broken bail system needs to be fixed, as do long-standing problems with court processing and delays.  

Overall, we need to use the criminal law much more judiciously.  Restraint needs to be once again affirmed as an important criminal justice principle.

We need to considerably expand the range of front-end diversion measures and alternatives to incarceration.  Our jails and penitentiaries house some of the largest concentrations of people with mental health conditions in the country.  About half of all criminal offences leading to a federal sentence occur while the offender is under the influence of an intoxicant.  For the mentally disordered and addicted, a sentence of imprisonment is the modern equivalent of being sent to the asylum.  These people don’t need punishment as much as they need treatment.  We need more drug treatment courts, more mental health courts and more Gladue courts.

When it comes to corrections, given the disproportionate and rising number of Indigenous people, visible minorities, mentally ill and people struggling with addictions who are held behind bars, there are some obvious reform measures that come to mind:

  • Prohibition on the use of segregation to manage mentally disordered, suicidal and self-injurious offenders and introduction of a legislative cap of no more than 30 continuous days in segregation.
  • Appointment of a Patient Advocate to serve at each of the five regional treatment centres, the hospitals that are part of the federal correctional system.
  • Creation of a National Forum to lead death in custody prevention efforts, covering all forms of detention, including police lock-ups, remand, immigration detention and sentenced custody.
  • Increased focus and dedicated leadership on Aboriginal correctional issues.

These are just a few of my reflections on the challenges we face and some proposed remedies.  I hope my remarks have adequately set the stage for the presentations to come and will provoke some critical thought and discussion.  Thanks again for the invitation to be with you this morning.