HARPER'S INFLEXIBLE STEPS TO GET TOUGH ON CRIME

As expected, yesterday's Speech from the Throne mentioned the five
priorities Prime Minister Stephen Harper has set for the coming
session, and, as usual, it touched on any number of other issues:
environmental review, farm support, the Bank Act, the "fiscal
imbalance," aboriginals, new immigrants, you name it.

Perhaps that is why the stiffer criminal penalties that Mr. Harper
has proposed in his bid to tackle crime -- one of the five priorities
- -- received only one sentence.

As well as providing "hope and opportunity" to steer youths away from
crime, and along with helping to put more police on the streets, his
government "will propose changes to the Criminal Code to provide
tougher sentences for violent and repeat offenders, particularly
those involved in weapons-related offences."

Mr. Harper was more expansive on Monday, when, facing the sympathetic
audience of the Canadian Professional Police Association, he assured
the front-line officers that he would do all he could to put more
people in prison and to make it more difficult for them to leave.

His words played well in the hall, and may play well with many other
Canadians, but his determination to impose a one-size-fits-all
response makes for better sound bites than it does policy.

The Conservatives want to "set mandatory minimum sentences for
serious, violent and repeat crimes," he said, including those by drug
traffickers, marijuana grow operators, repeat offenders, people who
use weapons and people who commit crimes while on parole.

The government plans to repeal the "faint hope" clause that sees even
first-degree murderers get a shot at applying for parole after 15
years in prison rather than 25. It will replace statutory release --
near-automatic release after two-thirds of the sentence -- with
"earned parole," end conditional sentences for "serious crimes" and
bury the Liberals' bill to decriminalize marijuana.

All points echoed the CPPA's own manifesto.

And Mr. Harper knows he won't lose in the House of Commons with such
a platform. When Paul Martin's Liberals were in power, they
introduced a bill to impose more mandatory minimums -- a bill that
Mr. Martin suggested in January "should be toughened." Even
then-justice-minister Irwin Cotler changed his tune. Last year, he
observed that studies have "all come to the conclusion that minimum
sentences are neither a deterrent nor are they effective." But during
the federal election campaign, he said minimums should be increased
to "send a strong message of denunciation." Perception trumps reality.

NDP Leader Jack Layton, who might have been expected to question the
social value of locking people away regardless of circumstances,
called during the campaign for mandatory minimums for the illegal
possession and sale of restricted firearms.

The trouble with mandatory minimums is that they remove a judge's
discretion to temper justice with common sense in cases where the
evidence warrants. This might sit well with those determined to
believe that the courts are stuffed with activist judges who abuse
their power, but most judges treat gun crimes and weapons offences
very seriously.

And have those critics imagined how the changes would play out in the
real world?

Accused criminals who might have accepted a plea bargain will now
fight their cases through the courts, having less to lose. Mandatory
jailing would swell the prison populations at a considerable cost
which Mr. Harper didn't mention either in Monday's address or in the
Throne Speech. Apart from the many new minimums, the Conservatives
would increase existing mandatory minimum sentences for gun crimes to
between five and 10 years, up from the current one to four years.

Of course, some money might be saved because prosecutors would use
their discretion not to prosecute.

In March of last year, David Daubney, general counsel for the federal
Justice Department's sentencing reform team, said prosecutors were
already withdrawing or staying two-thirds of charges related to the
mandatory-minimum gun laws because, in part, they concluded that "it
would be unjust to send someone to jail for a year based on the
circumstances that were there." One-size-fits-all doesn't fit all.

There is a similarly regrettable inflexibility in Mr. Harper's
proposal to keep first-degree murderers locked up for 25 years before
they have a hope of applying for parole.

The faint-hope clause was part of a system of checks and balances
introduced after the abolition of capital punishment. Previously,
parole eligibility for capital murder had been set at 10 years; it
was raised to 25 years, but with a compromise that left the door open
for special cases.

After 15 years, if a murderer wishes to make the case that he has
reformed and is no longer a threat, he may try to per-suade a jury
and, if enough members of the jury agree, to make the case before a
parole board. It is not a get-out-of-prison-free card. It is a
measure to encourage those in prison to behave and reform, to have
something to look forward to, and it is a recognition that not all
murderers are cut from the same cloth.

As for the decriminalization of marijuana, Mr. Harper would do well
to recall the December, 2003, ruling by the Supreme Court of Canada
which found that Parliament has the power to make possession of
marijuana a crime.

Three dissenting judges said "the harm caused by prohibiting
marijuana is fundamentally disproportionate to the problems that the
state seeks to suppress," and even the majority said the accused
raised "matters of legitimate controversy" in arguing that "the line
between criminal and non-criminal conduct has been drawn inappropriately."

Consider that one-third of Canadians are estimated to have smoked
marijuana at least once. Is the activity considered so dangerous, so
harmful to society, that someone in simple possession of a small
amount should be subje ct to a record that will limit where he or she
may travel and what professions he or she may enter?

No. The penalty is disproportionate, and the element of discretion --
criminal charges may be laid against one person with a marijuana
joint, but not another -- makes it even less palatable.

A bill to decriminalize the drug belongs before Parliament.