Stephen Harper set out as Prime Minister in 2006 with the express goal of taking back the Criminal Code from the Liberal Party, and the toughening of crime laws has become a permanent and central feature of his agenda. But how fundamental have those changes been?

The Globe and Mail spoke to law professors, Crown attorneys, defence lawyers, criminologists and victims’ advocates for an answer. The question comes at a time when the Conservative government is taking heat over justice issues, with the Auditor-General’s report on prison overcrowding and the Prime Minister engaging in an unprecedented public battle with Supreme Court Chief Justice Beverley McLachlin.

The consensus is that Mr. Harper has kept his promise: Love it or hate it, he has broken with some long-standing principles and made major changes to how criminals are punished.


(Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, effective Dec. 2, 2011)

Why it’s a fundamental change:

It’s the biggest psychological break with Canada’s recent past. It makes life mean life, or very close to it, in a country that has no death penalty and no penalty of life without parole.

How it works:

For each first-degree murder (planned and deliberate killing), a killer could wait as long as 25 years before a parole hearing. Four murders could bring a parole eligibility period of 100 years.

How it used to work:

In 1976, when Parliament abolished capital punishment, it made a life sentence mandatory for murder, with the first parole hearing after 25 years for one or more first-degree murders. There was also a “faint-hope clause” – after 15 years, a killer could ask a jury for an early parole hearing. Canada was similar to England and Wales, where mandatory lifers – murderers – serve an average of 16 years before release.

The Conservatives abolished the faint-hope clause, saying it increased the suffering of the families of victims. Then they borrowed from the United States, which has “life without parole” in 49 states (all except Alaska). Of 140,000 inmates serving life sentences in the United States, 40,000 are serving life without a possibility of parole, a Canadian government briefing paper says.

This measure could be a stepping stone to some day raising the 25-year parole eligibility in especially brutal single killings, now that the psychological barrier of 25 years has been breached.

The first case:

Last summer, Travis Baumgartner, a 21-year-old armoured-car employee in Edmonton, pleaded guilty to killing three coworkers in a heist, and his lawyer accepted a plea deal of 40 years’ parole eligibility – the harshest sentence since the last death penalty case in 1962. He will be eligible for parole at age 61.


The major impact will be felt by the families of victims, who won’t need to attend nearly as many (or perhaps any) parole hearings, says Steve Sullivan, head of Ottawa Victim Services.

Sue O’Sullivan, federal Ombudsman for Crime Victims, say the provision is important in holding offenders accountable for each life taken. It may therefore build public confidence in the justice system.

Symbolic impact:

“The Criminal Code is like a pyramid,” says Gary Clewley, a former Crown attorney who often represents police officers in court. “It’s important what happens at the top. It’s important that the most serious offences are treated in the most serious fashion. That sets a standard for everything else.”


(Safe Streets and Communities Act, which received royal assent on March 3, 2012, and other laws)

Why it’s a fundamental change:

It’s critical to making Canada more of an incarcerating nation. It’s also critical to reducing the power of judges over sentencing, and asserting Parliament’s views on fit sentences.

How it works:

Canada has long had mandatory minimums, but under the Conservative government they have become near-ubiquitous in drug offences, sexual crimes against children and gun crimes. Growing six marijuana plants brings at least six months in jail (there was no minimum before). Possession of child pornography has a six-month minimum (up from 45 days established by the Liberals in 2005). Illegal possession of a loaded handgun (or with ammunition nearby) brings at least three years on a first offence, five years on a second one.


There may be some deterrence. Some justice officials say word is out among criminals that carrying a gun on the street means three years in jail. (Academic studies suggest mandatory minimums are ineffective deterrents; Mr. Clewley, the former Crown attorney, says studies can’t show what crimes people would have committed but for a tough law.)

There are more trials, as people try to avoid an automatic jail sentence. That means more burdens on the courts, Crowns and legal aid, which haven’t added enough infrastructure to keep up, justice officials say. New mandatory minimum sentences also mean more prisoners, and greater costs for the corrections system. In the U.S., mandatory minimums, especially for drug crimes, fuelled that country’s surge to its status as the world’s leader in incarceration.

The sentences also mean more public confidence in the justice system. Mandatory minimums “more properly reflect the seriousness of the offence,” Mr. Clewley says.

Reality check:

The minimums haven’t totally erased discretion in the system. The federal government writes the Criminal Code, but the provinces administer the justice system. Crown attorneys at times try to get around the mandatory minimums, in cases where they think it is inappropriate.

For instance, Ontario Court Justice Colin Westman, who sits in Kitchener, tells of a case in which a husband and wife were caught by a Children’s Aid worker growing 12 marijuana plants. There were questions about whether it was constitutionally permitted for police to use the evidence. The Crown, after seeking permission from higher-ups, dropped the charge against the wife, and reduced the charge against the husband so he didn’t face a mandatory jail sentence, Justice Westman said.

Methods of evasion vary. A Crown may lay a less serious charge – improper storage of a firearm, rather than illegal possession. (One justice official questioned whether three years in jail is appropriate where “Grampa” keeps under his bed a loaded gun obtained during the Second World War.) Or a Crown could avoid the mandatory minimum by laying a charge as a less serious summary offence, rather than an indictable one.

Court battle:

Ontario’s Court of Appeal has ruled the mandatory minimum of three years for handgun possession unconstitutional, saying it would be unfair to apply it to someone who has a licensed gun kept in a place not covered by the licence. The Canadian government is seeking permission to appeal that ruling to the Supreme Court.

3) END OF ‘LEAST RESTRICTIVE’ MEASURES FOR PRISONERS (Safe Streets and Communities Act, which received royal assent on March 3, 2012)

Why it’s a fundamental change:

It diminishes the rights of prisoners. The notion that prisoners lose only those rights necessary for safety and security is weakened.

How it works:

Prisoners are no longer entitled to the “least restrictive” measures consistent with the protection of society, staff members and offenders. Instead, corrections officials may use “necessary and proportionate” measures – for example, in disciplining prisoners, or in the type of custody in which they are placed. “Least restrictive” was a “constitutionally derived standard based on restraint in the exercise of state power,” the Canadian Bar Association says. The new standard is “left entirely to the discretion of correctional authorities.”

The change in language “has a direct impact on operations,” says Howard Sapers, Canada’s ombudsman for federal prisoners. “It could be more use of restraints when physical handling would have been enough. Or more use of pepper spray when physical restraints would have been enough. Or more use of segregation when temporary confinement to cell would have been enough. Or transfer to maximum security when just a short segregation placement in medium would have been enough. It allows you to be more restrictive than absolutely necessary.”


It makes the prisons harsher places. “Almost by definition you’re inviting overly restrictive responses,” Mr. Sapers says.

Combined with other policy changes, it means prisoners are serving longer periods in jail, in more violent environments than in the past. The use of pepper spray in federal prisons was up from 334 uses in 2006-07 to 1,005 uses in the first nine months of 2013-14. The use of segregation rose 7 per cent in the past five years. The use of force by guards rose 20 per cent in the past five years.

“We’ve seen a whole host of changes that mean more people spending longer in prison, and often at higher security levels than they used to,” Mr. Sapers says. “When they’re released, it’s with a shorter period of supervision, and often with less correctional programming completed. Being kept in segregation restricts access to programming, being kept at higher security levels restricts access. When you keep people inside longer, it leads to a scarcity of programming capacity.”

As a result, the country’s federal prisoners will have a more difficult time, not less, reintegrating peacefully into communities, he says.

4. END OF HOUSE ARREST FOR VIOLENT AND SOME NON-VIOLENT CRIMES (An Act to Amend the Criminal Code, Conditional Sentence of Imprisonment, took effect Dec. 1, 2007; Ending House Arrest for Property and Other Serious Crimes took effect Nov. 6, 2012)

Why it’s a fundamental change:

Jail is no longer an option of last resort, as the Criminal Code’s sentencing principles say it should be: “All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly aboriginal offenders.” The end of house arrest for many crimes has weakened that principle.

How it works:

House arrest as a form of punishment came into being at the same time as Canada’s sentencing principles, under the Liberal government of Jean Chrétien in 1996. Those developments owe much to a 1987 sentencing commission under the Progressive Conservative government of Brian Mulroney, which felt that Canada was incarcerating too many people who were not a threat to society. (“If imprisonment is realized to be, at best, a partial failure, it is only logical to recommend that it be used with extreme moderation,” the 1987 report said.) House arrest applied only to crimes in which a judge found that a sentence should be no more than two years less a day. Now, for many crimes in that category, such as car theft, theft over $5,000 and fraud over $5,000, house arrest is not an option.


The Parliamentary Budget Office estimated that in a typical year, the change would affect 4,500 people. Half of those would opt for trial, trying to avoid jail; 650 would be acquitted. Costs to keep each offender at home: $2,600 a year. Costs inside prison: $41,000 a year. Total extra costs would be $135-million for provinces, and $8-million for the federal government.

Reality check:

With house arrest unavailable, Crown attorneys sometimes recommend and judges sometimes grant sentences of probation, with conditions that may include house arrest, as an alternative to jail, justice officials say. The problem: A breach of house arrest may lead an individual directly to jail, but a breach of probation may result in a trial months down the road, deferring the consequences.

5) END OF ACCELERATED PAROLE REVIEW FOR NON-VIOLENT OFFENDERS (Abolition of Early Parole Act, Bill C-59, effective March, 2011)

Why it’s a fundamental change:

It removes a basic difference in treatment between violent and non-violent crime. A trend to differential treatment has been around since the late 1970s, a federal background paper says.

How it works:

It ends a more lenient parole system for non-violent offenders on their first federal sentence (two years or more).

How it used to work:

The Mulroney government created accelerated parole reviews in 1992. Eventually, under a Liberal government in 1997, non-violent, first-time federal offenders were allowed to apply for day parole at one-sixth of their sentence. All other offenders become eligible at six months before the one-third point. Unlike other offenders, non-violent first timers did not have to apply to the National Parole Board for release, and the board did not have to hold a hearing to release a prisoner.

The purpose of APR, according to a federal background paper, was to focus prison resources on those with serious drug or violence problems, and at high risk of reoffending. It was also to save money, as in 2006-07, the average cost of supervising offenders in the community was $23,000 a year, and $93,000 in jail.

“The intent of accelerated parole review is to provide for formal recognition in law that non-violent and violent offenders should not be subject to the same conditional release process,” Corrections Service Canada had said when the program was still operating.


White-collar and other non-violent criminals will spend longer in jail, at an estimated cost of $350-million over five years, according to federal estimates.

“The result is that we’re going to end up with a much bigger prison population,” Mr. Clewley says. “Will we have safer society as result? I don’t think there’s any doubt about that. Most of these people are recidivists. You have to start with the working assumption that there are people who enjoy committing crimes.”

Others say there is little evidence that the change will reduce white-collar crime.

And then there’s …


This would have ranked No. 5 – but a Supreme Court of Canada ruling in April softened its bite.

Thousands of prisoners would have had spent more time behind bars, if the court had accepted the government’s view of how the Truth in Sentencing Act should be implemented – and if lower-court judges hadn’t balked first.

Ever since the 1970s, the Criminal Code had given judges express permission to grant enhanced credit to prisoners for time served in custody before sentencing. Typically, judges gave double credit, to reflect the “dead time” – the lack of programming and lack of progress toward parole and other forms of early release.

As of Feb. 22, 2010, the government banned that double credit. The Truth in Sentencing Act said each day in custody before sentencing should be worth no more than one day off any subsequent sentence. It also said judges could give 1.5 days credit where “the circumstances justify it.” How big a change was this? Kevin Page, the former Parliamentary Budget Officer, predicted three years ago that the new approach would cost the federal and provincial governments as much as $5-billion a year by 2015-16.

But judges began routinely to give 1.5 days credit for each day served. And the Supreme Court ruled unanimously that they have the discretion to do so.

The Globe and Mail
Published Tuesday, May. 06 2014, 8:42 PM EDT
Last updated Wednesday, May. 07 2014, 5:58 AM EDT