CANADA’S “WAR ON CRIME” versus AMERICA’S “RIGHT ON CRIME”

CANADA’S “WAR ON CRIME” versus AMERICA’S “RIGHT ON CRIME”

1. “Punishment”-Motivated Laws

In an omnibus crime bill in 2008, CANADA’s federal government changed how dangerous offenders are classified and sentenced. The amendment removed some of the judge’s discretion and made it easier for courts to designate dangerous offenders after they have been convicted of three or more indictable offences. An indeterminate sentence, which does not give a specific release date, is the most severe of three sentencing options for the court.

[A British Columbia Supreme Court judge recently ruled that the legislation violates the Charter of Rights and Freedoms in that it may capture offenders who are, in fact, not truly dangerous but who are, instead, unwell and who, with treatment, pose a limited risk to the public.”: http://www.theglobeandmail.com/news/british-columbia/ottawa-to-re-evaluate-dysfunctional-crime-law/article24793784/]

In 2011, the Tories removed the “faint hope” clause that allowed lifers to apply to a jury after 15 years for the right to an early parole hearing.

In 2012, our government fast-tracked debate regarding Bill C-10: Safe Streets and Communities Act. Among other things, mandatory minimum sentences were imposed for child sex offences and drug trafficking, and pardons were ended for serious violent and repeat offenders. Why—unless you don’t believe in rehabilitation—end pardons?

The Canadian government recently enacted a law sanctioning consecutive, rather than concurrent sentences. Applying this law an Ontario court imposed an unprecedented minimum 30-year prison term for two counts of 2nd-degree murder: http://bit.ly/1QBPp7K 
In March 2015, our government announced plans to make violent repeat criminals wait longer to achieve “statutory release,” and (Bill C-53) to end the possibility of parole for some convicted killers.

[On May 31, 2015, our Government announced that it would be a “challenge” to pass either of those laws before the Commons close on June 23. The demise of these bills will mean a retreat from, as one law professor stated, “the increasing vengefulness of current criminal justice policy.”]

2. Negative Impact of Changes

Correctional Service of Canada’s watchdog Howard Sapers—his contract recently not renewed by the Feds—has said that, as predicted, that these various pieces of legislation have led to the need for more prisons; the incarceration of people for minor, non-violent offences; and poorer prison conditions including over-crowding, fewer “pro-social programs, and a higher incidence of “administrative” solitary confinement (in reality, isolation of indeterminate duration.)]

In his 2014 Annual Report, Sapers said,

“Use of force interventions, inmate fights and assaults, offender grievances and segregation placements are all trending upward in recent years. Key indicators against which safe and humane custody may be measured show there is more crowding, more disease and more violence in federal institutions.

Prisons that are filled beyond their rated cell capacities are at higher risk of jeopardizing safety and security of the person. Unnatural or preventable deaths in custody (suicides, homicides, overdoses) are perhaps the most visible failing, but too many other lives either are cut short by premature death or are marked by injury.
An increasing proportion of the offender population is spending more of their sentence behind bars before first release…”

My personal experience echoes those sentiments.

When I developed pen-pal and “visitor” relationships with a number of prisoners, CSC treated me like an alien: On the one hand, to every appearance I was engaged in “pro-social” behaviour—behaviour aimed at assisting in the reintegration process. On the other hand, it was clear they believed I had some kind of ulterior motive.

I was once put on notice that I was writing to too many inmates; on another occasion, that I couldn’t be on more than one inmate’s visitor’s list, etc. When I threatened to go public, CSC backed down….

How many other families and loved ones would have the gumption to do likewise?
One small ray of light: Though I assumed CSC would reject my offer to donate my book to every federal correctional institution in Canada, they said that I may. As far as I know, my book is now in every library.

+++

Sadly, our PM keeps beating the same drum: If we don’t lock up offenders and throw away the key, we are complicit in making our society unsafe. In support of that fear-based thinking, he manufactures policy-based evidence instead of promulgating evidence-based policy.

The fact is that crime rates have been falling for a decade; prison spending is increasing by $5 billion annually; and six prison farms, considered by some to be Canada’s most effective rehabilitation programs, where inmates produced food for themselves and other prisons, have been closed. Observers say that this will result in inmates being hardened, instead of healed. http://www.whynotharper.ca/#printablelist]

3. Are the changes making our country safer?

Not according to Vancouver South Liberal candidate Harjit Sajjan, former VPD detective and military officer (Bosnia and Afghanistan):

Based on the insight I gained in the military and in law enforcement, I truly believe that the unique, open and diverse society we have built in Canada is a strength we have in dealing with future threats. By focusing our government’s efforts on fear, suspicion and finger pointing, as has been the case recently, we risk wasting Canada’s greatest strength — its people, and in the process we put our nation’s security at further risk: http://bit.ly/1L50P0R  @theprovince

Motivation behind “War on Crime” initiative

Our PM, by hyper-focusing exclusively on the rights and interests of the “victim”, plays into what Dan Gardner has called the “science and politics of fear.”
In his excellent book, Risk (2008, Virgin), Gardner writes that humanity has never had it so good. Most people around the world are better off and will live longer than their ancestors.

But instead of being relaxed, we are scared that bad things will happen to us: nuclear war, cancer, child abduction.

Our brain anatomy, Gardner says, was fixed millennia ago—such that we are not equipped to process the complexity of modern living, especially where risk is concerned. We hear about a terrorist attack; we see the gruesome consequences on TV and, before we can calculate the probability that we personally will be blown up, our brains have reacted as if we are being charged by a rhino: no time to think! Run!
If you think you don’t believe everything you see on TV, he says, it doesn’t matter. Your Stone Age brain has processed the images and is using them to shape your opinions whether you like it or not.

“It could have been me” is a common response to news of a disaster, although usually the mathematical probability of it actually having been you is infinitesimal. FEAR SELLS.
The only solution, Gardner says, is to think more, think harder—The primitive part of our brains might be open to seduction by alarmist politicians, but, given enough time, the rational part can step in and stop us from going all the way.
Alas, if only re-programming were that easy…

5. Shifting the Narrative: The “Right on Crime” movement

Ironically, even the most right-wing of USA politicians are leaving Canada’s thinking on this subject in the dust.

Republicans turn against “Tough on Crime” policy: http://www.theglobeandmail.com/globe-debate/americans-get-tough-on-tough-on-crime-policy/article24330216/ How ironic: First, America’s Republicans spawn Harper’s “tough on crime” policy; now, they eschew it: http://bit.ly/1FdK5FE  @globeandmail

According to Texas Republican Representative Jerry Madden,

It’s a very expensive thing to build new prisons and, if you build them, I guarantee you they will come. They’ll be filled, OK? Because people will send them there.
Texas and California, among other jurisdictions who had started down the same “punishment” road down which our government is leading us, are now—realizing it cost too much and made their justice system worse—reversing direction.

In an article entitled “The Conservative Case for Reform,” dozens of high-ranking Republicans including Jeb Bush and Newt Gingrich write as follows:

Too often the lens of accountability regarding government services has not focused as much on public safety policies as other areas of government. As such, Corrections spending is now the second fastest growing area of state budgets—trailing only Medicaid.
Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending…. A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders—making them a greater risk to the public than when they entered….

An ideal criminal justice system works to reform amenable offenders who will return to society…

Because incentives affect human behavior, policies for both offenders and the Corrections system must align incentives with our goals of public safety, victim restitution and satisfaction, and cost-effectiveness, thereby moving from a system that grows when it fails to one that rewards results.

Viewed in the light of a system that “rewards results”, what sense does it make to remove the “faint hope” clause? Lock up low-risk offenders? Increase the time virtually every offender must spend behind bars?

From an economic perspective, does it make sense to deny forever the opportunity–not the reality—of parole to those convicted of certain first-degree murder offences? This despite Correctional watchdog Howard Sapers’ statement that 99 per cent of offenders released on day parole or full parole last year did so without reoffending.

Since the abolishment of capital punishment in 1976, the murder rate in Canada has been cut in half. Also:

—Canada has 1115 (first-degree murder) offenders sentenced to life, minimum 25 years. 203 have been paroled;
—Average cost to keep a man in Maximum security is $148,000 v. $35,000 on parole;
—40 years in jail would cost nearly $6 million for one person in Maximum security; $6 billion for 1,000; and
—In recent years, the website of CSC has described those serving life sentences as “The most likely to succeed on parole.”

The authors of “Right on Crime” point to the need to take a principled approach to public safety. As they wrote, “Our security, prosperity, and freedom depend on it.”

Who would have thought that our Republican friends south of the border could offer their neighbours north of the ’49—neighbours historically smug about our supposedly “superior” criminal justice system—such invaluable insights?

As Gerry Ayotte, a wonderful prison chaplain, once said to me, “Let he who has ears hear.” Let’s hope that we Canadians do just that.

Make DNA Testing Available to Convicted Persons Claiming Innocence

Wide Reach of Wrongful Convictions

Posted: October 27, 2014 1:09 pm

Twenty years ago, Jennifer Thompson was a college student when she was sexually assaulted in her North Carolina apartment and burglarized. The following month, Thompson identified Ronald Cotton as the assailant and he was eventually convicted and sentenced to life plus fifty-four years. Cotton remained behind bars for a decade until DNA testing proved his innocence and identified the real perpetrator as Bobby Pool.  The DNA testing also revealed that Thompson had misidentified her attacker. Thompson describes the traumatic experience of the attack and the haunting effects of wrongful conviction in an op-ed that appeared in Sunday’s edition of The Hill. She writes:

My rage and hatred had been misplaced. I was wrong.  I had sent an innocent man to prison.  A third of his life was over, and the shame, guilt and fear began to suffocate me.  I had let down everyone — the police department, the district attorney’s office, the community, the other women who became victims of Bobby Poole, and especially Ronald Cotton and his family.

Several years after Ronald was freed, I received a phone call from Bobby Poole’s last victim.  I remember hearing her story about what happened to her and realizing that we all had left him on the streets to commit further crimes – rapes — that we possibly could have prevented if Ronald had not been locked up for something he had never done.  The knowledge that Mr. Poole had been left at liberty to hurt other women paralyzed me and sent me into a backward spiral that took years to recover from.

This journey has taught me that the impact of wrongful convictions goes so much further than a victim and the wrongfully convicted.  The pool of victims from 1984 was huge – me, Ron, the police department, our families, and the other women who became victims of Bobby Poole all suffered.

In the years following Cotton’s release, he and Thompson forged an unlikely friendship and co-author the memoir Picking Cotton, about the harrowing experience of Thompson’s misidentification.  Her experience as a victim and the role she played in Cotton’s wrongful conviction has shed light on the need for legislation to protect the innocent.

Thompson writes: “The Justice for All Act, which is up for reauthorization by Congress, allows men like Ronald to obtain post-conviction DNA testing that can lead to their freedom and to the conviction of the guilty.  Without access to such testing, innocent men will remain in prison, real perpetrators will remain free and new victims will have to experience the same horrors and indignities that I did.  I urge Congress to pass the Justice For All Act now so that we can live in a world where the truly guilty are behind bars and the innocent are free.”

“Innocence on Trial”—Book Review

“Innocence on Trial”—Book Review

ANOTHER WRONGFUL CONVICTION: IVAN HENRY “INNOCENCE ON TRIAL” by JOAN MCEWEN

BarristerI admit it…I’m a crime junkie. I’ve read every true crime book written by Ann Rule and Jack Olsen. I’m also a big fan of America’s Most Wanted, and I frequently peruse the FBI Most Wanted List. Don’t hate me when I tell you that I follow the executions in the States, even though I’m against capital punishment.

Having established my credentials to review Vancouver lawyer Joan McEwen’s new book “Innocence on Trial: The Framing of Ivan Henry” Heritage House Publishing 2014, I should also add that I’m a criminology graduate and have been married to a police officer for almost three decades.

Beginning with Steven Truscott and on to David Milgaard, Guy Morin, Romeo Phillion, Michael Morton and so many others, I have been horrified by the number of men who have languished in prison for crimes they did not commit, both in Canada and the United States.

But Joan McEwen’s story of the persecution of Ivan Henry brings it all home, right to our doorstep in Vancouver British Columbia, where a down-on-his-luck ex-con, father to two young daughters, found himself ensnared in a nightmare that still has not ended, after serving 27 years in prison.

Ivan Henry, age 35, was in an on-again/off-again relationship with ex- wife Jessie, a drug addict, when he was detained by the Vancouver Police Department as a burglary suspect. What he didn’t know was that the police were really after him for fifteen sexual assaults attributed to a sex offender the police called the “rip-off rapist”, based on the offender’s pretense that he was looking for someone who had stolen from him. Henry’s record contained one hit for attempted rape, a charge he pled guilty to on the advice of his lawyer when he lived in Winnipeg.

He denied being involved in any sexual offences and offered to take a polygraph test. The police declined his offer, but were adamant that he participate in a line-up. When he resisted, three “lean and mean” uniformed officers grabbed him and maneuvered him into a line with an assortment of their dark-haired colleagues, wrapping themselves around him, while holding his head of red hair in a vise-grip.

The photo of that line-up became a crucial part of Henry’s case and it was later revealed to be a “trophy”, retained by the trial judge, Mr. Justice Bouck, who proudly displayed it in the Judge’s Lounge in the courthouse at 800 Smithe Street, Vancouver. Cheap laughs…

Henry was immature and ornery, and too foolish to realize he was in water over his head when, after a preliminary hearing before His Honour Wallace Craig, he was committed to trial for ten counts of rape. Before his 1983 jury trial began Henry fired his legal aid lawyer. When offered the services of legal star, Richard Peck as trial counsel, Henry declined, believing the system was rigged and that Peck was just another player in the grand conspiracy against him.

How difficult could it be? There was no evidence against him: no hair, fibre, DNA , confession, or eye witnesses, and he had an alibi for many of the times he was alleged to be in flagrante delicto.
His trial tactics were unconventional, to say the least. Because he knew he had not assaulted any of the parade of women who identified him as their rapist, some of whom said they recognized his voice, he argued they were all liars…making it all up.

Before the trial completed Henry came to the realization that while he could handle the facts, he needed a lawyer to help him with the law. When he asked Mr. Justice Bouck to allow him to obtain a lawyer for that purpose, Bouck J. said:

“You should have thought of that before…I said you should have a lawyer. You turned it down. You elected to represent yourself. You take the chances…We’ve given you a copy of Martin’s Criminal Code.”

After ten hours of deliberation, the jury convicted Ivan Henry on all ten counts, whereafter Crown Counsel Mike Luchenko announced the Crown was seeking a dangerous offender designation. As night follows day, Henry was “bitched”, the expression used to describe criminals found to be “habitual” or dangerous offenders.

Henry poured over law books in preparation for his appeal but could not afford the thousands of dollars required for the court transcripts. Eventually he appeared before British Columbia’s Court of Appeal on a motion to dismiss the appeal for want of prosecution, brought by appellate crown Al Stewart, later Mr. Justice Stewart. Of course, the
Crown won and Henry was banished to purgatory. Later his leave to appeal to the Supreme Court of Canada was also rebuked.

Ms. McEwen’s carefully researched story reveals indifference, betrayal, class discrimination, and worst of all, a cast of characters who didn’t give a damn about Ivan Henry. He was just the usual collateral damage in the state’s zeal to close the books on a series of assaults that continued after Henry was locked away.

As the truth spills out, we learn that Ivan Henry’s ex-wife, sold him down the river, a la Judas Iscariot, in exchange for a few pieces of silver and gold, that ended up in her arm.

The unfortunate women who were victimized by a rapist, were then victims of a justice system that wasn’t really interested in the truth, for if it had been, they could have seen it staring in their face.

It is difficult to say who comes off worse in this sordid tale. Based on Ms. McEwen’s careful narrative, it must be a tie between Crown Counsel Mike Luchenko and trial judge Mr. Justice Bouck, both of whom deserve censure for the roles they played. By 1983, it was no secret that eyewitness testimony was unreliable and could never, by itself, be the foundation for a life sentence. But that’s what happened.

Years later, when one of the heroines of this story, Crown Counsel, Jean Connor , voiced her suspicions to the Attorney-General, concerning the convictions of Ivan Henry, McEwen reports that Mr. Luchenko tried, undeservingly, to take credit for an eleventh hour redemption.

With twists and turns galore, and an unvarnished glimpse of Canada’s brutal prison system, Ms. McEwen’s book is a compelling must-read for anyone who still believes justice should be blind, and that it is better that ten guilty men go free than to have one innocent man suffer.

Wrongful Convictions in Plea Bargaining

Wrongful Convictions in Plea Bargaining

  • Anthony Conference
    Author: Kristin Smyth, Law Student, Osgoode Hall

    In 1989, Anthony Hanemaayer plead guilty to a sexual assault Paul Bernardo later confessed to. With AIDWYC’s help, Hanemaayer was exonerated in 2008.

    It is becoming increasingly apparent in Canadian society that the justice system is not perfect and that innocent people can and are convicted of crimes that they did not commit. The wrongful convictions of individuals like Guy Paul Morin and David Milgaard have received considerable attention in the media and legal community. The concept of innocent people who plead guilty during “plea bargaining” is receiving more attention amongst legal commentators and laymen alike. Much of the concern stems from the contested role that a “bargain” should play in a judicial system dedicated to due process. It has been argued that the use of the word bargain implies that the justice system is a commodity that can be bought by those who understand how to work the system.[1] Canadian citizens have a right to the presumption of innocence and a right to a fair trial. “Backroom negotiations” with prosecutors call into question the fairness of the system.

    Why would an innocent person plead guilty?

    The question you have probably been asking is why would anyone in their right mind plead guilty to a crime that they did not commit? While it may be difficult to imagine, there are many reasons. First, going to trial is scary. For an accused, going to trial means uncertainty. Their lives are in the hands of the judge, and sometimes a jury, and no one can know for sure what either will do. On the other hand, if they negotiate with a Prosecutor, it is more likely they will receive a more lenient sentence than were they to go to trial and lose. This perceived security can be enough for an innocent person to plead guilty and admit to the crime, rather than risk a trial where the outcome can be much worse. Professor Ellen S. Podgor argues that “our existing legal system places the risk of going to trial…so high, that innocence and guilt no longer become the real considerations.”[2]

    Another reason someone may plead guilty is to avoid the significant financial, psychological and opportunity costs of going to trial. Not only can the trial process be terrifying to an accused, it’s expensive and stressful. Going to trial means usually means paying a lawyer for countless hours of work for a trial which could last months or even years. Furthermore, the accused cannot typically work while a trial is ongoing, costing them even more money.

    Psychological studies have assessed the decision making process that occurs when an innocent person is accused of something that they did not do. In one such study, college students were left in a room with one other “student” to complete logic problems. One of the students was then, wrongly, accused of cheating and given the option of either accepting a plea bargain or having to appear before the Academic Review Board (where 80-90% of students were found guilty). 56.4% of the innocent participants falsely admitted guilt in order to reduce the punishment given. Admittedly, the situation just described cannot capture the pressure and gravity of the choices that an innocent accused must make when standing before the criminal justice system. Nevertheless, the anxiety experienced while anticipating punishment is similar and the study can offer important preliminary insights.

     Why is the problem largely unrecognized?

    In 1973, the Ontario Law Reform Commission described plea bargaining as “an unhealthy philosophy quite alien to our concept of an open, fair and public administration of justice.”[3]Despite Canada’s historical unease with how plea bargaining interacts with judicial fairness, we have scant answers to our many questions concerning wrongful convictions in plea bargaining. Why don’t we know how many people plead guilty to crimes that they did not commit? The simple is because we rarely hear of the cases again. They don’t appeal. They don’t cause a fuss. Nobody asks questions. Wrongful convictions often only come to light as a result of the significant effort and resources expended by individuals in a search to uncover the truth.[4] It is often only the most serious of cases that benefit from those efforts and resources because the pay-off from success is greatest.[5] It is possible that many of the cases which involve innocent people who plead guilty were lesser offences and the convicted either did not have, or felt that it was not worth, the resources that would have been required to discover the truth. Based on these factors, it is likely that any study which looks at the problem of plea bargaining and false self-condemnation will significantly underestimate the true extent of the issue.[6]

    What is to be done?

    If Canada did not allow plea bargains, the justice system would come to a near standstill. Following the Supreme Court of Canada’s decision in R v Askov,[7] approximately 50,000 cases, in Ontario alone, had to be dismissed due to unreasonable delay. In response, the Martin Committee was assembled to review and make suggestions regarding pre-trial procedures in the criminal courts. The Martin Committee gave plea bargaining their stamp of approval to increase expediency. Today, a much higher proportion of convictions result from guilty pleas than from trials.[8]

    With the awareness that plea bargaining is not leaving the system anytime soon, how do we ensure that wrongful convictions do not occur? According to Judge H. Lee Sarokin, the only solution is “vigilance by all those involved.”[9] It is unclear whether this is the only solution. This is a question that needs to be asked by the legal community and more thorough research and discussion must occur if we ever hope to reach an acceptable answer.


    [1] G. A. Ferguson and D.W. Roberts, “Plea Bargaining Directions for Canadian Reform” (1974), 52 Can Bar Rev 497 at 550.

    [2] Ellen S. Podgor, “White Collar Innocence: Irrelevant in the High Stakes Risk Game” (2010) 85 Chicago-Kent L Rev 77 at 77.

    [3] The Law Reform Commission of Ontario, Report on Administration of Ontario Courts, Part II(Toronto: Department of Justice, 1973) at 119.

    [4] Ibid  at 4

    [5] Samuel Gross et al, “Exonerations in The United States 1989 Through 2003″ (2005) 95 J Crim L & Criminology 523.

    [6] Lucian E Dervan & Vanessa A. Edkins, “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem” (2013) 103 J Crim L & Criminology 1.

    [7] R v Askov, [1990] 2 SCR 1199.

    [8] Christopher Sherrin, “Guilty Pleas from the Innocent” (2011) 30 Windsor Rev Legal Soc Issues 1 at 2.

    [9] Judge H. Lee Sarokin, “Why do Innocent People Plead Guilty?” The Huffington Post (29 May 2012), online: Huffington Post <http://www.huffingtonpost.com/judge-h-lee-sarokin/innocent-people-guilty-pleas_b_1553239.html>.

    Conviction: The AIDWYC Blog is written by volunteer authors. The opinions expressed herein do not necessarily represent AIDWYC’s position or policies.

Injustice, Forgiveness, and Redemption

In 1984, Jennifer Thompson was raped. She went on to testify that Ronald Cotton was the man who attacked her and as a result, he was sentenced to life in prison. After eleven years of incarceration, DNA evidence exonerated Cotton of the crime. Two years after he was released, Thompson reached out to apologize. Not only did he forgive her, but Thompson and Cotton went on to write a memoir together about their experience, Picking Cotton: Our Memoir of Injustice and Redemption

 

Victims’ Rights Bill C-478

And another thing:

Bill C-478 seeks to make “violent offenders” wait 5 years for a parole hearing, rather than the current two. The John Howard Society says such a change bodes ill for the gradual reintegration of offenders back into society. Hence, in terms of the “bottom dollar”, more $$.

Not only that, Sue O’Sullivan, the “Federal Victims’ ombudsperson”, has asked that offenders lose the ability to withdraw parole applications on short notice.

Why??

Does it not make sense for an offender, learning that his Institutional Parole officer, etc., is dead-set against him winning parole, to save everyone the effort by withdrawing his parole application when, not to do so, means another 2? 5? years more inside?

To read this proposed private member’s bill is to shake one’s head.

If only the people on the ground in Corrections Services of Canada and Canada Parole Board felt they had the freedom to weigh in…. When they signed on for their roles, did they ever imagine their decision-making would be so hamstrung?