Thursday, October 12, 2006

Conservative Political Theatre

In the last few months, Prime Minister Harper and his Conservative government have been taking hits with their policies. Afghanistan is still perhaps one of the most divisive issues, with 59% of Canadians disagreeing with his policy. The Softwood Deal can be best described as a sell-out. Earlier this week, the much touted "Green Plan" was released not to applause but to more criticism.

What better time then, to jump on the trusty Conservative standby issue of "Law and Order" to draw our attention away from these other, far more important issues. The government is proposing a shocking "Reverse Onus" for dangerous offenders. In otherwords, after a third conviction of any "sexual assault" or "violent" crime, an offender must now prove they are not a dangerous offender as designated by the Criminal Code. Being designated a dangerous offender means that a person is imprisoned indefinitely.

Clearly neither the Prime Minister nor Vic Toews, the Justice Minister have read or understand the Charter of Rights. The Supreme Court ruled in 1986 in R v Oakes that reverse onus clauses in criminal law were unconstitutional. The only way for this to be legal, would be for the Federal government to do some thing that it has never done - invoke the Section 33 "notwithstanding" clause or for a Section 1 reasonable limit challenge.

Surely, I can hear you all saying, with all the crime we are facing this could certainly be reasonable?

Of course the problem is we aren't facing a crime problem, despite what the Conservatives want you to believe. According to the latest from Stats Canada, the crime rate in Canada dropped 5% last year.

While some violent crime was up from the year before - sometimes seemingly significantly - there is less crime now than 10, 20 even 30 years ago. For instance, while the rate of murder was 4% higher than last year, it is only 2% higher than 10 years ago, after a 30 year low in 2003. Attempted murders are up 14%, but are still 20% lower than 10 years ago. Assaults and Sexual assaults are down or unchanged and are down 8% and 25% repsectively from 10 years ago. Overall violent crime remains unchanged from last year and is still 7 % lower than 10 years ago.

"The national crime rate has been relatively stable since 1999, with last year's 5% decrease offsetting a 6% hike in 2003. The crime rate declined during the 1990s, after rising throughout most of the 1960s, 1970s and 1980s."

In other words, over the long term, crime, including violent crime, is falling, even without these new "reverse onus" clauses. The increase in the murder rate can be attributed to 10 extra murders in the cities of Edmonton, Toronto and Regina can account for ALL of the 34 increase in murders in Canada. There is no need for a draconian reverse onus to protect us from crime.

The effect of this "reverse onus" clause, apart from the fact that is is not needed and violates the Charter, will be cost. If this passes, there will be a sudden increase in incarcerated offendeers. Our prison costs will explode. And yet as studies into mandatory minimums have shown, increased rates of incaceration have no effect on the crime rate (which is already dropping, remember?) nor do they prevent recidivism among offenders. An increase in incarcerated offenders, with no hope of parole or release, will have nothing to loose, making life far more dangerous for prison guards and other, non-violent offenders. Add to this the almost certain court battles and even more certain loss in the Supreme Court, which will overturn this kind of law, making this a frightful waste of government time and taxpayer's money. A strange stance for a government that says it is about "value for money."

The bottom line is that this reverse onus is an unneeded, unconstitutional law, meant solely to implement a policy based on ideology rather than fact. It is a crass attempt to pander to the social conservative base, rather than to seek real solutions to real problems facing Canada and Canadians.

The Opposition should most definitely NOT "get onside" with this rights-trampling nonsense. They should soundly defeat any attempt by this government to pass such a law.


At 11:45 PM, Blogger Nastyboy said...

What better time then, to jump on the trusty Conservative standby issue of "Law and Order" to draw our attention away from these other, far more important issues.

You couldn't be more right. I'm worried an anti-flagburning bill is next.

At 11:11 AM, Blogger Unknown said...

I think they're ramming through ideological legislation because they aren't sure they're going to win the next election when its called. Right now they're polling neck and neck with a leaderless Liberal party. And that must make them nervous.


At 10:49 PM, Blogger Unknown said...

Repeat offenders should be put to sleep, this would cut costs.

At 1:26 AM, Anonymous Anonymous said...

I need to know some statistics before I reply.

Is the cost of keeping a repeat offender behind bars longer higher than that of the next victim or lower?

Is the pain and anguish of the families more or less expensive.

I googled and can't find anyone who has had a family member murdered by a repeat offender that is in favor of the "let 'em go, we can't afford it" approach.

At 11:51 AM, Blogger Mike said...


Thank you for confiming that this is about playing to the so-con ideology and not about facts.


I appreciate your position but I guess it depends on how you see the crinimal justice system and the penal system. Is it soley for revenge, AND you are willing to pay the price then perhaps your position is tenable. If it is to protect society in general, then it is not.

The US has the highest rate of incarceration in the world. By your logic, they should be the safest society with the lowest crime rate. They are not. Warehousing does not work to prevent the crime that the family members suffer through in the first place. It works only after.

We currently have a way for the truly dangerous offenders to be locked up indefinitely. That Crown Attorney's are not using it is not a fault of the legislation nor of the Federal Government (Crowns are administerd by the province).

I also find it odd that the Conservatives ar more than willing to sacrifice social programmes that would actually prevent crime and the victimization you speak of on the alter of "fiscal responsiblility" and "value for money" but are more than willing to spend even more money incarcerating them after they committed the crime. That's not value for money, it is merely vengence.

This legislation is being proposed to solve a problem that isn't a problem and does not exist. It will have a detremental affect on all of us via higher government costs and will do nothing to lower or prevent crime.

Why would we do that?

At 10:58 PM, Anonymous Anonymous said...

You missed the most important flaw in your argument.

The basis of your spin falls on the importance of the Charter. The Charter is not important, and will be changed under Canada's New Government.

This will blow away your foundation of 'fact'. I can't wait.

I am having a hard time with one thing however. How can a left swinging person such as yourself be so demanding that Government control so many aspects of our lives (healthcare, daycare, etc) and yet be so repulsed when a Government chooses to take that control.

Please help me understand your thinking (I'm not kidding either).

At 9:33 AM, Blogger Mike said...


The Charter will not, indeed CANNOT, be changed by the Cons, no matter how much you wish. I would recommend you, you know, actually read the Constitution before making such a silly statement.

'Control' is a bit of a loaded word in your arguement. Firstly, I see healthcare and daycare as the government providing much needed services in a more fair and efficient way than the market can. Each of these would be in a state of market failure without our government. Nothing to do 'control' beyond that needed to counter things like collective action problems. I would suggest that you read my many posts on our healthcare system. These kinds of government programs are not the whole "nationalize everything" that you seem to be implying (in fact, I don't agree with nationalization of industry).

The biggest difference is the very real effect on a person's actual freedom. There is a great deal of difference between the state having the power to have people required to prove themselves innocent of crimes (the "crime" of being "dangerous" in this case) and by default imprisoning them indefinitely and the inconvenicnece of having to wait for treatment in a public healthcare system. They are not in the same league.

It is a little thing called nuance and context that I would hardly expect a typical Conservative supporter such as yourself to understand. Ironically, when it comes to these kinds of actual, personal rights and freedoms, I am closer to libertarian than anyone else.

Also, my arguement rests on such things as The Magna Carta, the US Constitution, the UN Declaration of Human Rights, the writings of Thomas Jefferson, Paine, and others.

On what philisophic basis does the idea that the state has the power to imprison someone - anyone - without presenting evidence that such an imprisonment is warranted?

At 6:58 PM, Blogger Tim said...

You provide alot of stats here Mike. But the one that is most relivant for the post is missing. Of the crimes committed in Canada, how many of those are performed by repeat offenders? 2,5,10,20%? Whatever the number is, those are clearly people who are not "getting" it no matter what conciquences are given to them. So why let them back out on the streets to continue to re offend and create more "victims"? These are the "only" people who will be affected by this law. They are the ones who don't give a crap about anyone but themselves and deserve what they get. If they haven't learned from strike one and two...what makes you think strike three will be any different? They certainly don't give a crap about anyone elses "rights", I'm sure not going to worry about theirs.

At 7:49 PM, Blogger Mike said...

Then it ought to be very easy to prove in court that somemone is dangerous, just like the law rpovides for right now, shouldn't it?

Think about the premise of your comment - that there are a lot of criminals going around committing repeat murders, repeat sexual offences etc. The stats I quote show that this isn't happening, that the numbers of these crimes is going down.

If my memory of sentencing reform class from back in 1990 is correct, the lowest recidivism rate is among murders - a murderer rarely commits that crime twice (except for the obvious exceptions, which are already easy to commit as dangerous offenders).

A better way to deal with the issue would be to force a crown attorney file a hearing for dangerous offender status after 3 convictions. Or update the prcedure or critera for someone to be declared a dangerous offender. Update the definition of dangerous offender.

But don't forget to put in safe guards like appeals and jusdicial review. Do we simply lock up a guy with three convictions for the rest of their life? Do we have a review every 5 years to see if they are dangerous? Every 3? do we allow them to apply at other times if they feel they are not?

I'm quite sure that the crimes you are thinking of - pedophiles, serial rapists and murders etc - are already easily proven to be dangerous offenders, under our existing law. Who exactly, is this new law for?

Its to rally the troops and draw attention away from the area of policy where the government is failing - Afghanistan, the environment and softwood. In short, in true Rovian style, you are being played.

At 10:43 PM, Blogger Unknown said...

One repeat offender is too many in my view.

If the crime rate is going down like you say, it would not cost that much to put repeat violent offenders away forever.

Why should you care if a violent offender gets put away forever. Why are you defending them.

At 11:03 PM, Blogger Tim said...

"Think about the premise of your comment"

The premise of my comment was no where nere what you state. I asked what is the percentage of crimes commited by people who are re offending. I don't care if it is murder, robery or petty theft. I suspect that this number is very low.

The premise of my argument is that "some" people just don't get it. Those people who continually break the law will never get it and unless seperated from the rest of society will continually re offend regardless of the consiquences. Are they "dangerous" to society? More than likely no. They are a "menace" to society, and cost us millions each year in insurance claims, lost productivity, police enforcement, the judicial system and so on. What is the price they pay for their deeds if caught? A couple years behind bars (maybe)and off they go again to do it again and again until once again they get caught. How many victims have they created in that time? 10, 20? One is too many.

At 9:09 AM, Anonymous Anonymous said...

Dear Wayne, Tim, and others,
Umm, Mike has effectively shown why this proposed legislation is redundant and illegal and here you are offering positions that seek to refute his claim or simply side stepping his argument by asking "Why are you defending them?". He's shown that the people you so fear can already be dealt with by existing law.

Tim offered the brilliant suggestion that "One is too many" as justification for a new law. Using the logic of that statement please tell me how you reconcile the opposite "argument" that one innocent person in jail is too many.

Sorry gentlemen, Mike has, in fact, rebutted your comments totally.

At 7:38 PM, Blogger Tim said...

"one is too many"

Let me get this straight anon... are you suggesting that a single person has been convicted of offences that they have "not commited" more than once? I am talking about habitual criminals here as is the proposed law. People who have been convicted of perpetuating multiple crimes not just one. The "one is too many" refers to the victims of these repeat offenders.

At 12:30 AM, Blogger DazzlinDino said...

Mike, as you know, I haven't been overly impressed with the Conservatives as of late either, blogging has solidified my lack of enthusiasm for politics as of late. sure the Conservatives have followed through with the majority of their campaign promises, but they are lacking too much in other ares.

As far as the criminals are concerned, I'm all ok with paying to keep them behind bars, but I also think if prisons were actualy horrible places to be crime would be lower as well. Prison should be a place with zero rights and hard work, someplace you would go out of your way not to come back to, not one you gamble on getting caught for.

At 9:54 AM, Blogger MarkCh said...

It seems to me that Mike is saying that existing legislation is good enough to do the job, if only Crown prosecutors would ask for dangerous offender status. However, he also says that Crowns are administered by the provinces. This seems to imply to me that the only thing the federal government could do is to change the criminal law, which is agreed to be under federal jurisdiction.

Mike's argument, that crime rates will be basically unaffected by this move, implies either that very few criminals will actually be given this status, or that, having committed three violent offences, a criminal is no more likely to commit a fourth than anyone else is to commit a first. I find the latter possibility bizarre, although the first is reasonably plausible. Of course, if the first were true, then this would be a small but beneficial measure, which is in keeping with other Conservative moves.

Parenthetically, it seems odd that the left, who were constantly going on about their fear of a Harper government, should also object so strenuously to Harper's taking small, incremental steps which, while not solving all problems in a flash, will at least provide some concrete benefit.

At 10:48 AM, Blogger Mike said...

Attempting to implement a reverse onus clause is hardly an "incremental step" - it is a complete turnaround of over 200 years (longer if you go back to the Magna Carta) of legal and political thought in the West.

This will not provide any benefit. It may result in those that are NOT really dangerous being jailed indefinitely. And now with the Court Challenges program dead, unless they happened to be a former Saskatchewan Cabnet Minister, they could not afford to fight this detention in court.

I am stating that crime rates are currently going down without this measure. Implementing it will either have no effect or, as I pointd out, make matters worse for prison personel and worse for our pocket books. The new law is being touted to fight crime, yet it does not. It is being touted to make us safer, yet we are safer now than we were 10 and 20 years ago without it.

Have 3 strikes rules made California safer? Or other states?

This is the hieght of laziness on the part of the Cons. They want the easy way to put away violent criminals, rather than the right way. They don't want to have to be bothered to actually prove that some one is violent, they just want toss them all in jail, thinking that will fix everything.

Sorry to get all philisophic here, but one of the basic tenets of our western relationship with the state is that they must PROVE that someone belongs behind bars, to take away their physical liberty. The burden should always be on the state. I mean if the state, with all the money and resources at its disposal, cannot prove that a person is too dangerous to be ever set free, how exactly will an imprisoned individual find the resources to prove they are NOT dangerous?

I may want to the state to have some power, but not the power to automatically imprison someone for anything.

I pointed out above some of the many things the Feds could do to fix the dangerous offender status without going to reverse onus. Of course that would require thinking, creativity and nuance, something the Cons aren't exactly known for.

So far, I have been uable to find any stats indicating we have a problem with repeat offenders committing crimes. Indeed I have only found stats indicatin g that this is ALSO dropping:

Some highlights of the report include:

* The vast majority of offenders on full parole (nearly 73%) completed their paroles successfully. The overall recidivism rate for federal full parolees was 12.9 %, down from 13.4% last year.

* The vast majority of federal day paroles (over 82%) also successfully completed their releases without incident. The overall recidivism rate was 5.6%, which is down from 6.8% last year.

* Most offenders on statutory release (nearly 58%) completed their sentences successfully in the community. The overall recidivism rate in 1999-00 was 14.8% which is consistent over the past five years.

Again, there is not problem to solve, most certainly not by stampeding to a draconian measure like reverse onus. This is just laziness and outright pandering to myth by the Conservatives in order to win votes and deflect from their other failures. And if it passes, it will be real human being that pay for this political expedience with their freedom.

At 11:09 AM, Blogger MarkCh said...

Mike, your statistics are largely irrelevant, because they do not confine themselves to the set of people who have already been convicted of three violent crimes. The Conservatives' move will be popular, because most people will regard three violent crime convictions as already constituting proof beyond a reasonable doubt that the person will reoffend if released.

The philosophical point of "reverse onus" is a bit of a phobia. Do offenders not already have a reverse onus in order to win parole? IANAL, but I believe that an offender must present specific reasons to win parole, or that at least the standard for denying parole is not "proof beyond a reasonable doubt", as it is for conviction in the first place. Would you feel better if the new rule was that a third violent crime conviction carried an indefinite sentence automatically, but prisoners on this sentence could attempt to win parole after a set time?

At 11:12 AM, Blogger MarkCh said...

Your link did not work. Does it break down recidivism by type of crime, eg violent/nonviolent, and seriousness?

At 11:20 AM, Blogger Mike said...

"The Conservatives' move will be popular, because most people will regard three violent crime convictions as already constituting proof beyond a reasonable doubt that the person will reoffend if released."

Exactly my point. They are not doing because it is correct, they are doing because it is popular. It is a lazy way to get votes and get out of actually having to prove your contention is correct all at the same time. Conservatives will chuck the fundemental priciples of justice in the country because something is convenient and popular. Nice to know.

There is no problem with three time-reoffending criminals that requires the draconian measure of a reverse onus. If it is that obvious that they will re-offend (and I have a criminalogy degree from Carleton and it is not that obvious) then it should be easy for Crowns to prove offenders are dangerous, right?

The state should not have the right to automatically imprison anyone indefinitely. Ever.

BTW try copy and pasting the link. It works fine when I do that.

At 4:46 PM, Anonymous Anonymous said...

What there has to be in the system is the desire of judges to label someone a dangerous offender. On reflection, I agree with the term "serial offender" much more than repeat offender, as these are the guys that immediatly come to mind. Could there not however be some type of "safeguard", such as a third "serial" offence enacting the term "dangerous offender" that could be repealed upon proof of remorse and rehabilitation. Some kind of safegueard to keep a-holes from slipping through the cracks? Also include in that the guy who commits multiple offences at the same time but cannot be given consecutive sentences...


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