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Rights + Justice
Federal Election 2011

To Push Prisons, Harper Buried Own Government's Findings

Facts on crime and jail terms didn't fit vote getting strategy, so PM ignored them. Excerpted from Lawrence Martin's 'Harperland.'

Lawrence Martin 29 Apr

Lawrence Martin is author of many books and a political columnist for The Globe and Mail.

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Prime Minister Harper lays out his government's changes to criminal justice system in 2008.

Under Prime Minister Stephen Harper, Canada's justice department, which had about 200 researchers in its policy branch, produced sophisticated studies that, as per the normal run of things in any department, were supposed to be used to inform policy decisions.

But a funny thing happened at justice. The researchers might just as well have gone on holiday.

The work they did went directly to nowhere because it either didn't conform with or directly contradicted the biases of the governing party. "We still produced a lot of stuff," said a former employee. "It just never saw the light of day." When a government starts suppressing its own research time and time again -- research the public is paying for -- it's serious business, he said. Some senior players in the department were bitter and frustrated, but they didn't dare raise their voices. They had their careers to look after, so they tolerated the censorship.

The Conservatives wanted to make up for many years of what they considered soft-on-crime legislation by their Liberal predecessors. New sheriffs were in town. Their crackdown measures included mandatory minimum sentences for a wide range of offences, a broadly expanded jail system, the closure of the prison farm system, the limiting of parole opportunities, and any number of other bills that set harsher punishments and sent young people to the slammer for minor offences. In its first four years, the government created or beefed up 19 minimums.

Rob Nicholson's justice department was the most ideologically driven in memory. The Conservatives planned to expand budgets for prisons by 27 per cent over three years. More space would be needed for all the incarcerations resulting from their new policies. Increased spending at justice continued even when almost all other departments were being hit with cutbacks.

Canadians could be forgiven for assuming that statistics and studies would be introduced to support the new draconian turn. But for much of this legislation, the stats and studies came primarily from outside the department and often contradicted the bills. Among the numerous studies was one by the Criminological Digest. Based on research covering 40 years, it showed that mandatory minimum sentences do not have a deterrent effect. Many state legislatures in the U.S. were trying to unwind such sentencing, as were the parliaments in Britain and New Zealand. The American experience indicated that increased jailing was hardly the advisable approach. Incarceration rates south of the border had risen 700 per cent over four decades, and there was no corresponding drop in crime. The state governments were moving away from the lock-them-up-and-leave-them strategy in a bid to reduce prison populations and soaring costs.

'Raw wedge politics'

A 235-page analysis of Harper's corrections policy by Michael Jackson, a law professor, and Graham Stewart, the retired head of the John Howard Society, said that pandering to people's baser instincts was overtaking decades of empirical evidence. "Raw wedge politics -- in place of studied evidence -- is the new face of public policy for Canada," wrote the authors. The government "creates the notion that the decent treatment of prisoners is somehow putting the public at risk when in fact it's the compete reverse."

Harper appeared to have little interest in hearing what the specialists had to say. In a speech in 2008, he rejected research-based justice policies, saying those behind them were trying to "pacify Canadians with statistics... Your personal experiences and impressions are wrong, they say; crime is really not a problem. These apologists remind me of the scene from the Wizard of Oz when the Wizard says, 'Pay no attention to the men behind the curtain.'"

Harper, said his friend John Weissenberger, viewed law and order as a matter of principle. "He feels that if you commit a crime the punishment should fit the crime. It's traditional conservatism in that it's the same type of idea he was raised with. It's closer to the average guy's view of law and order."

The Conservatives held to a dim view of criminologists. "In the case of crime," Ian Brodie said, trying to explain the Tory approach, "Canada had a very small community of criminologists propagating a policy perspective that didn't relate to the facts, and a bunch of people in government and the NGO community who got caught up in the thing for their own reasons." Brodie recalled a moment, shortly after their new government took over in 2006, when he, Rob Nicholson, Mark Cameron, Vic Toews and Stockwell Day were surveying the situation and asking, "Hey, do the facts matter here?"

Toews, he said, then spent years arguing with Statistics Canada that "the crime stats they collect massively understate crime in a known, systematic way." StatsCan reported on aggregate crime as reported to the police. "The problem," said Brodie, "as anyone who gives it a split second of thought realizes, is that not all crime gets reported to the police." Brodie made these remarks shortly before Harper made a highly controversial decision to scrap the mandatory long-census form, prompting the resignation of the head of Statistics Canada, Munir Sheikh.

Bashing the 'hug a thug crowd'

Right-wing commentators expressed outrage over reporting on crime by media that used only modern-day StatsCan numbers. Statistics from the agency said crime went down three per cent in 2009 compared to 2008, and 17 per cent compared to a decade ago. Critics, mainly on the left, used these numbers to try to undermine the Harper argument for a new get-tough approach.

The problem with the media, argued the Toronto Sun's Lorrie Goldstein, is that they use the wrong base date. If they went back to 1962 they would find that the crime rate was 131 per cent higher in 2009 than that year, he said. As for violent crime, it was 321 per cent higher than in 1962. Of the more recent dip, Goldstein wrote: "The knee-jerk argument from the hug-a-thug crowd that a slightly lower crime rate automatically means we don't need as many police or prisons is akin to arguing a lower mortality rate automatically means we don't need as many doctors or hospitals."

In keeping with their preference for wedge politics, the Conservatives attempted to label opponents of their philosophy "soft on crime." It was one of Justice Minister Rob Nicholson's favourite phrases. What struck Don Davies, the NDP justice critic, was that the government was ignoring the evidence from south of the border.

"If getting tough on prisons -- locking people up longer and more harshly -- resulted in a safer society," he pointed out, "the United States would probably be the safest country on earth."

Votes vs. findings

John Geddes of Maclean's was among those who tried to get data from Nicholson to support the government's contention that sentencing in Canada was too light. But the department couldn't furnish such data. Nicholson, Geddes concluded, was using impressions more than facts to justify minimum sentencing. "Nicholson's office and his departmental officials," he wrote, "admit they have not compiled statistics on typical sentences in convictions for most of the crimes they have targeted."

Critics of the crackdown extended from Margaret Atwood on the left to Conrad Black on the right. In 2010, Black, who was serving a prison term in Florida, said of the government's blueprint, "A Roadmap to Strengthening Public Safety," that "it is painful for me to write that this garrotte of a blueprint from the government I generally support is flirting with moral and political catastrophe."

As if trying to paint themselves as philistines, Nicholson and Peter Van Loan took to ridiculing those who opposed their policies for being, in Van Loan's words, "university types." Those with academic credentials did not appear to be high on his list of preferred people. The Conservatives, Brodie included, were persuaded, in fact, that criticism from society's most erudite members on their tough-on-crime package was a benefit to them.

The motivation for the Tories' approach was simple enough -- being tough on crime attracted votes. Post 9/11, Canadians had become more conservative on law-and-order issues, according to studies the government was prepared to believe. Because of this, the Liberals were prepared to support the Tories on many of the measures.

But Nicholson kept beating them with that hammer anyway. His constant refrain was that the opposition was trying to obstruct the Tory agenda -- if not in the House, then in the Senate. Senator James Cowan produced a chapter-and-verse account of the progress of the government's legislation that hung Nicholson out to dry. "Of the 21 law-and-order bills introduced by this government," concluded Cowan, "18 died on the Order Paper because Stephen Harper decided to prorogue Parliament [in 2009]."

Targeting Vancouver's InSite clinic

Nicholson appeared unfazed by criticisms that he was living in the Stone Age, even though he had once rejected the very approach he was now taking. As an MP in the Mulroney government in 1988, he vice-chaired a parliamentary committee that released a report opposing the use of mandatory minimum sentences except in the case of violent sexual offenders. In formulating its conclusions, the committee drew on the American experience.

The government's hard-headed approach was also seen in respect to Guantánamo and the gun registry. As for drug policy, the Tory attitude was reflected in the government's determination to shut down InSite, a safe-injection centre in Vancouver. Numerous peer-reviewed studies concluded that the supervised facility reduced drug overdoses and the spread of HIV/AIDS while increasing the number of users who sought treatment. B.C. courts ruled that the centre should remain open. But in keeping with their low regard for empirical data, the Conservatives launched legal challenges to lock its doors.

Before the Conservatives came to power, expertise played a greater role in policy formation. More scholarship came from within the federal bureaucracy. More input, though not a great deal, came from the rank and file of the party in power.

The Conservative Party under Harper, however, saw policy-producing activities reduced almost to the point of non-existence.

Policies in 'total control of PMO'

Harper occasionally sounded out the party on policy, as he did at a 2008 Winnipeg convention where some token resolutions were passed. But basically the rank-and-file members bought in to the idea that they were just there to raise money and fight.

Much had changed since 1993, when the Reform Party elected 52 MPs. By 2009, 42 of those early missionaries were gone. Thus there was little pressure on Harper from the early idealists. If any of those who were still around tried to flex their muscle, they were muzzled. Lee Morrison, an original Reformer and one of Ottawa's most compelling characters, bowed out prior to the 2008 election. He saw what was happening and didn't like it. "The concepts of popular control of the party from the grassroots, open government, MPs representing their constituents, and fiscal responsibility were replaced early on with total control from the PMO."

Stephen Harper, said Morrison, "will be remembered as an opportunistic, masterful tactician who in the course of only three years purged the Conservative Party of its Reform ideals."

As Harper's grip tightened, any grumbling was met with the argument that extreme discipline was the only way to go, given the perils of a minority. Grassroots democracy was a pipe dream. Many of the newly elected Conservative MPs -- the 75 or so who arrived with the 2004 election -- were young and easily won over by the Harper way. His style of governance was the only one they knew, and they were inclined to march in formation.

This article is excerpted with permission from Harperland: The Politics of Control by Lawrence Martin, published by Viking Canada. Read a previous excerpt from the book in The Tyee here.  [Tyee]

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