Indictment shows need for massive change in criminal justice | David Dorson

By David Dorson

Law360 Canada (October 19, 2023, 10:19 AM EDT) -- Ben Perrin is a law professor at the University of British Columbia.  A decade ago he was for a couple of years a senior adviser to the Harper government on criminal justice policy, and he was integrally involved with that government’s “tough on crime” approach. 

The Conservatives introduced a huge number of bills to make the criminal justice system tougher, such as mandatory minimum sentences, restrictions on parole and the creation of new criminal offences and tougher penalties. Many of these bills never got through Parliament, and a number of others have been struck down by the courts, but as Tom Flanagan has written (in Persona Non Grata), the Conservatives were much more interested in the political effects of the laws than in any actual results they might produce.

Since then, Perrin, much to his credit, has completely changed his views. In his new book, Indictment, and in podcasts and other public venues he argues strongly that our existing approach to criminal justice is entirely wrong — ineffective — ineffective, expensive and creating more harm than good. He has become a leading exponent for what might be called a “progressive” or even transformative view of criminal justice. 

The many riches in this book can’t be addressed fully in a short review.

Strong link between trauma, crime

A central point in Indictment is that the vast majority of people we criminalize, arrest and incarcerate are themselves victims — of childhood (or adult) trauma, of substance abuse, of mental health issues, of racism. Using personal accounts and many references to the research, he takes up each of these in a chapter that documents how extensive and serious these issues are, and how badly they are handled. The way we treat people with these issues in the “justice” system generally makes things worse for them, and consequently for us. Instead of recognizing people’s need for help and support, we punish them further. That leads to more crime, not less. As the research indicates, tougher policies do not lead to less crime.

“It all points to the desperation of profoundly traumatized people with long term substance use disorders being locked in cages where their existing trauma, substance use, and mental health conditions are exacerbated, and they are exposed to fresh traumas.”

Instead of spending billions of dollars on policing and punishing, Perrin advocates, we could use that money to support stronger communities and better services for people in need, with much better results. The book provides a number of examples of such programs in Canada. 

Though these ideas are not new, Perrin expresses them very well. He includes a great deal of relevant research but also a lot of testimony from his interviews with a wide variety of people who have been in and through the system. The argument is broad, compelling and well constructed. And the fact that is comes from someone who believed the opposite at one point makes it that much more powerful.

Areas for more attention

As strong as the book is, its argument could usefully be expanded in a couple of ways.

First, it is important to see that criminal law used for political purposes, as it was to an extreme extent by the Harper government, is a major problem. Law is used to inflame anger and anxiety as a way of gaining votes. The temptation to respond to any horrible event by promising to make a new criminal law is very strong. As a result we make too many things criminal — especially things that don’t harm anyone else. Many of these laws are then used specifically against marginalized people. 

At the same time, as Perrin shows, laws are enforced selectively. Many acts of wrongdoing are never prosecuted, or are pursued much less vigorously depending on whom the person charged is. For example, we know that serious crimes against, say, Aboriginal women were not given much attention by police.

We know that white collar crime is policed and prosecuted much less than things like vagrancy or shoplifting, even though it creates more harm. Estimates are that most adults have committed an indictable crime at some point in their lives, which makes nonsense of the idea that criminal justice is about separating “good” and “bad” people. 

We also need a different approach to “violent” crime and sex crimes, an issue Perrin does not speak to but is consistent with his position. Many proposals for criminal justice reform deliberately exclude “murderers and sex offenders.” Yet these are the two groups with the lowest recidivism rates. Excluding them from reforms plays into the fantasy that harsh punishment makes us safer. 

One of the most important steps we could take to reduce the harmful effects of the criminal justice system would be automatic expungement of criminal records after a reasonable period of time as proposed by Sen. Kim Pate. Canada’s experience with pardons has been very positive, under the current rules, which the Liberals promised to change but did not, there are very few of them. 

How do we make things better?

The weakest part of the book is the last section around how the needed changes might actually happen. As Perrin knows, “tough on crime” pays off politically, whether or not the policies actually work. Where fear and anger are strong, people are not going to listen to the nuances of research and politicians are going to promote simple but wrong solutions. How might we change public thinking so that there is more openness to policies that have been shown clearly to be more effective? Here the author has less to say. 

One approach that could help is to have independent organizations that can take some of the political heat off the government for policies in this field. Something like the old Law Reform Commission or analogous to CIHI in medicine would help bring research evidence into the public discussion and be very cheap relative to the costs of the existing system, let alone one that arrests and imprisons even more people. 

In other cases where public opinion changed dramatically, such as smoking or corporal punishment of children, it took sustained effort by many people, over a long period of time, with much use of research evidence and personal testimony, to bring about lasting change. That will be the case here too. Perrin’s book could be an important marker in that effort. It deserves to be widely read.

David Dorson is the pen name of someone who went through arrest, case disposition, imprisonment and parole in Ontario a few years ago. Law360 Canada has granted anonymity because he offers a unique perspective on a subject that matters deeply to many readers, and revealing the author’s identity would make re-establishment in the community after serving his sentence much more difficult than it already is.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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