GOLDSTEIN: How mercy to the guilty became cruelty to the innocent in Canada
Poilievre would have to invoke the notwithstanding clause to give judges the option of imposing consecutive life sentences on multiple and mass murderers
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Conservative Leader Pierre Poilievre’s election promise to use the constitution’s notwithstanding clause to give judges the option of imposing consecutive life sentences on those who commit multiple murders has prompted predictable outrage from Canada’s chattering classes.
Ditto his promise of a “three-strikes-and-you’re-out law,” which would deny criminals convicted of three serious offences bail, probation, parole or house arrest.
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Proposals to seriously toughen Canada’s criminal justice system are always greeted with opposition from “progressive” politicians, criminologists, criminal lawyers and the liberal media, all of whom ignore, have forgotten or never knew Adam Smith’s famous warning that “mercy to the guilty is cruelty to the innocent.”
The inevitable result has been Canada’s kid-glove treatment of criminals – easy bail, soft sentencing, statutory release, early parole that makes a mockery of sentences pronounced in court, special treatment for members of some minority groups, keeping the identities of young offenders secret even when they commit murder, and on and on.
Parole for many criminals comes as early as one-third of their sentence while unescorted temporary absences can begin when as little as one-sixth of the sentence has been served.
Our current Liberal government has re-enforced this philosophy – for example, in 2019 when it passed legislation requiring the courts to grant bail to people accused of crimes at the earliest opportunity, with the least onerous conditions.
Or in 2022 when it passed legislation removing mandatory minimum sentences for numerous gun crimes, arguing they unfairly impacted Black and Indigenous offenders.
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The Supreme Court of Canada has struck down mandatory minimums of as little as one year as unconstitutional, not based on cases before it, but by constructing hypothetical cases (that is, imaginary cases) where it ruled a mandatory minimum sentence would be cruel and unusual punishment in that case.
Poilievre would have to invoke the notwithstanding clause to give judges the option of imposing consecutive life sentences on multiple and mass murderers, because the Supreme Court in 2022 struck down the law giving judges that discretion, which was passed by the Conservative government of Stephen Harper in 2011.
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The origin of the federal government’s obsession with protecting the rights of criminals over victims goes back more than half a century to the government of then-Liberal prime minister Pierre Trudeau.
On Oct. 7, 1971, Canada’s then-solicitor general, Jean-Pierre Goyer, rose in Parliament to announce a new approach for dealing with criminals “to stress the rehabilitation of individuals rather than the protection of society” that would have profound implications for the justice system for decades to come.
“For too long a time now, our punishment-oriented society has cultivated the state of mind that demands that offenders, whatever their age and whatever the offence, be placed behind bars,” Goyer said at the time.
“Even nowadays, too many Canadians object to looking at offenders as members of our society and seem to disregard the fact that the correctional process aims at making the offender a useful and law-abiding citizen, and not any more an individual alienated from society and in conflict with it.
“Consequently, we have decided from now on, to stress the rehabilitation of individuals rather than the protection of society … Our reforms will perhaps be criticized for being too liberal or for omitting to protect society against dangerous criminals. Indeed, this new rehabilitation policy will probably demand much striving and involve some risks …”
Note Goyer’s admission that this approach would “involve some risks,” which is what happened.
The practical effect was to elevate the rehabilitation of the offender – however remote – above other principles of sentencing such as denouncing unlawful conduct, deterrence and the protection of society.
But it wasn’t just the Liberals who were enamoured of this approach in the 1970s.
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Both Progressive Conservative and New Democrat MPs spoke in favour of Goyer’s statement, if anything, admonishing the Liberal government for not moving quickly enough to reform the justice system. And in the decades following, both Liberal and Progressive Conservative governments subscribed to this soft-on-crime philosophy.
While Trudeau’s Liberal government abolished the death penalty in 1976 – in practical terms the last executions in Canada were carried out in 1962 – a 1987 free vote to bring back capital punishment was defeated 148 to 127, with then-Progressive Conservative prime minister Brian Mulroney describing it as “repugnant” and “profoundly unacceptable” and most of Mulroney’s cabinet supporting abolition.
The Charter of Rights, passed in 1982 during the Trudeau government, further expanded the rights of criminals.
When the Harper Conservative government of 2006 to 2015 attempted to toughen legislation to combat crime, it was met with a wave of entrenched opposition by “progressive” politicians, academics, criminal lawyers, liberal media and, in many cases, the courts, which continues to this day.
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