Crime and punishment with Anthony Doob

Professor Anthony Doob is one of the three-most cited scholars in Canada and one of the top 25 most-cited scholars worldwide. He is renowned for his insights into Canada’s youth justice system, sentencing and imprisonment and for his influence on policy. He will be giving a lecture at the University of Toronto on 6 February in advance of the publication of his new book: Losing our Balance: Old and New Directions in Canadian Criminal Justice Policy. Here Writer Kim Luke asked Professor Doob to share his thoughts on Canada’s criminal justice system.

PRI would like to thank Kim and the University of Toronto for allowing PRI to republish the interview here.

The title of your upcoming lecture is ‘Losing our Balance.’ How do you think Canada has lost its balance in Canadian criminal justice policy?
For more than a century, the Canadian government has struggled with the question of how to respond to crime.  Imprisonment, for example, was seen as a necessary evil, but an evil nevertheless. Few commissions or political leaders (from any party) thought that sending more people to prison would either reduce crime or “cure” offenders.  More recently, the Government of Canada seems to feel that almost any crime problem can be ‘solved’ simply by increasing the penalties that offenders will receive if they are convicted.

Are we overemploying criminal law in dealing with social issues? Should marijuana use, for example, be a crime?
In 1982, the Government of Canada issued a statement of its policies on criminal law and suggested that criminalizing behaviour should be done with restraint. We all understand that certain behaviours are unwanted or dangerous to others. But the Liberal government in 1982 suggested that we should use criminal law with restraint. So, on the issue of those who use marijuana, it is difficult to believe that criminalizing it is the best way of regulating it. Governments have many methods of regulating behaviour. The consequences of a criminal conviction are so widespread (and potentially devastating) that most people who have thought carefully about this problem would probably agree with the position taken in 1982.

How does Canada score in terms of dealing with youth offenders?
The treatment of youths who commit criminal offences was quite controversial in the late 1980s and into the 1990s. In 2003, however, the federal government brought in new legislation that has completely changed the way in which youths who offend are dealt with. Very simply, the law states that the use of the formal youth justice system – and the use of prison for youth – should be restricted to the most serious cases. It was understood by the framers of the law that most youths do things that could be considered to be crimes and most of these youths stop doing crime in their late teens. The result of the change in law was immediate and dramatic: the use of youth court and youth custody declined dramatically after the law came into effect in April 2003. This is seen, internationally, as a very successful instance of law reform. Rates of youth crime, as best we can determine, have continued to decrease.

You’ve been studying Canada’s criminal justice system for many years. What are some of the more disturbing trends? What are the more promising trends? Where do you think we’re heading?
Perhaps the most disturbing trend is that criminal justice policy does not appear to be crafted in line with any set of principles that serve the interests of Canadians – whether we are talking about the Canadian public generally, victims of crime, or those who are charged with, or convicted of criminal offences. It would appear that broad principles, consideration of empirical evidence, and careful attention to important details of the law have been set aside and all that really matters is how a change in the law will help the political fortunes of those in power.

The more promising trends, in recent years, come from the recognition in some provinces such as Ontario that some of the problems with the operation of the criminal justice system can be solved by the provinces and territories which are responsible for administering the criminal justice system. For example, Ontario has recently posted a set of recommendations on the website of the Ministry of the Attorney General that are related to improving the bail process. Currently about 60 per cent of the prisoners in Ontario prisons on an average night have not been sentenced to prison. Instead, they are awaiting trial or sentencing.  These are difficult problems and there are probably no political benefits to fixing them.  But attempts are being made by the provinces nevertheless. Unfortunately, the provinces cannot expect any help from the Government of Canada.

Are Canadian politicians afraid of being seen as “soft on crime?” How does public perception affect criminal policy?
My impression is that Canadian politicians have always had concerns about being seen as ‘soft on crime.’ But in the past, our political leaders seemed to believe that their role was to lead public opinion and to explain what they were doing rather than blindly follow the public. So, for example, Ministers of Justice – both Liberal and Conservative – used to issue broad written policy statements in part so that their full views could be debated and understood and they could be judged on their overall approach rather than by sound bites. More recently, these rather thoughtful approaches to crime policy are seen by the Government of Canada as being unnecessary, risky, or old-fashioned. Instead, the Government proposes or makes changes in the criminal law and then it suggests that these changes – which often simply increase legislative penalties – will make Canadians safer, even though the empirical evidence would suggest otherwise.

What do you think are the biggest misconceptions Canadians have about our criminal justice system?
This is an easy question to answer. It is the mistaken view that harsh sentences deter crime. Almost everyone who has ever looked systematically at the evidence in western countries knows that increasing the severity of sentences will not reduce crime. Similarly, there is now excellent evidence that the long-term effects of imprisonment on those sentenced to prison is that, if anything, those sent to prison will be more likely to commit crimes than equivalent people punished in the community. Members of the public believe otherwise because most of their political ‘leaders’ suggest that increased punishment is a quick fix to crime. It isn’t – except perhaps to get them re-elected.

Further information

This lecture was a John Ll. J. Edwards Lecture, held this year on 6 February.

Kim Luke is a writer with the Faculty of Arts & Science at University of Toronto.

David Daubney, Chair of the PRI Board, gave the Truscott Lecture in Justice at the University of Guelph on 29 January 2014 on his experience of criminal justice policy-making in Canada. You can listen to his talk here. As well as an expert on domestic and international criminal justice, David is also a former Canadian MP (1984-1988) who chaired the Standing Committee on Justice and Solicitor General and then became a senior official in Justice Canada.