David Clinton

Our Criminal Justice System Is Changing

58 percent of individuals sentenced to community supervision had at least one prior conviction for a violent offence. 68 percent of those given custodial sentences were similarly repeat offenders. In fact, 59 percent of offenders serving custodial sentences had previously been convicted at least 10 times.

Back in 2019, the federal Liberals passed Bill C-75, “An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts”. Among other things, the law established a Principle of Restraint that required courts to minimize unnecessary pre-trial detention. This has been characterized as a form of “catch and release” that sacrifices public safety in general, and victims’ rights in particular on the altar of social justice.

I’m no lawyer, but I can’t see how the legislation’s actual language supports that interpretation. In fact, as we can see from the government’s official overview of the law, courts must still give serious consideration to public safety:

The amendments…legislate a “principle of restraint” for police and courts to ensure that release at the earliest opportunity is favoured over detention, that bail conditions are reasonable, relevant to the offence and necessary to ensure public safety, and that sureties are imposed only when less onerous forms of release are inadequate.

So unlike in some U.S. jurisdictions, Canadian courts are still able use their discretion to restrict an accused’s freedom. That’s not to say everyone’s always happy with how Canadian judges choose to use such discretion, but judicial outcomes appear to lie in their hands, rather than with legislation.

Arguably, C-75 did come with a “soft-on-crime” tone (in particular as the law relates to certain minority communities). But even that was mostly reversed by 2023’s Bill C-48, which introduced reverse onus for repeat offenders and required judges to explicitly consider the safety of the community (whatever that means).

Nevertheless, the system is clearly far from perfect. Besides the occasional high-profile news reports about offenders committing new crimes while awaiting trials for previous offences, the population-level data suggests that our streets are not nearly as safe as they should be.

As far as I can tell, Statistics Canada doesn’t publish numbers on repeat offences committed by offenders free while waiting for trial. But I believe we can get at least part of the way there using two related data points:

• Conviction rates
• Repeat offender rates

Between 2019 and 2023, conviction rates across Canada on homicide charges for adults averaged 42 percent, while similar charges against youth offenders resulted in convictions in 65 percent of cases. That means we can safely assume that a significant proportion of accused offenders were, in fact, criminally violent even before reaching trial.

We can use different Statistics Canada data to understand how likely it is that those accused offenders will re-offend while on pre-trial release:

58 percent of individuals sentenced to community supervision (through either conditional sentences or probation) had at least one prior conviction for a violent offence. 68 percent of those given custodial sentences were similarly repeat offenders. In fact, 59 percent of offenders serving custodial sentences had previously been convicted at least 10 times.

Also, in the three years following a term of community supervision, 15.6 percent of offenders were convicted for new violent crimes. For offenders coming out of custodial sentences, that rate was 30.2 percent.

In other words:

• Many – if not most – people charged with serious crimes turn out to be guilty
• It’s relatively rare for violent criminals to offend just once.

Together, those two conclusions suggest that public safety would be best served by immediately incarcerating all people charged with violent offences and keeping them “inside” either until they’re declared innocent or their sentences end. That, however, would be impossible. For one thing, we just don’t have space in our prisons to handle the load (or the money to fund it). And it would also often trample on the legitimate civil rights of accused individuals.

This is a serious problem without any obvious pull-the-trigger-and-you’re-done solutions. But here are some possible considerations:

• Implement improved risk assessment and predictive analytics tools to evaluate the likelihood of re-offending.
• Improve the reliability of non-custodial measures such as electronic monitoring and house arrest that incorporate real-time tracking and immediate intervention capabilities
• Improve parole and probation systems to ensure effective monitoring and support for offenders released into the community. (Warning: expensive!)
• Optimize data analytics to identify trends, allocate resources efficiently, and measure the effectiveness of various interventions.

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 David Clinton

How Resilient Are Canadian Provinces?

Suppose one fine day the federal government was unable to show up for work. Perhaps it wasn’t feeling well. Or maybe it had borrowed so much money that it maxed out its line of credit, defaulted on its interest payments, and just couldn’t pay its bills. What then?

Let’s say – and I’m just spitballing here – let’s say that exploding, uncontrolled public debt is a bad thing. All the smart people tell us that taking on too much credit card debt won’t end well, right? Well I can’t think of any solid reason that such logic shouldn’t also apply to governments.¹

As you can see from the graph, our federal public debt climbed from $351 billion in 1990 all the way to $884 billion in 2024. The 50 percent leap between Q4 2019 and Q4 2021 was the generous gift of COVID. Things started to recover in mid-2023, but they’ve since nose dived once again.

Ah, but that’s just debt you say. It’s someone else’s problem.

Not exactly. You see, even if we’re not paying down the principle on the debt, you can be sure that we’re covering interest payments. Which, it just so happens, have become a lot more expensive ever since massive government borrowing drove up interest rates.

How much more expensive? As of Q1 2024, our annual interest payments totaled $11.7 billion, compared with $6.2 billion back in Q1 2022. Put differently, the interest we pay each year comes to seven percent of our total federal budget.

I’m certainly not going to confidently predict that the federal government will soon default on interest payments, lose access to capital markets, and begin laying off government workers and shutting down services. But I wouldn’t say that it can’t happen either.

Given that possibility, what can provinces and cities do right now to prepare for a sudden (hopefully brief) disruption? First off, though, what exactly is a province?

As defined by the British North America Acts, areas of the exclusive responsibility of the federal government include:

• Public debt and property
• Regulation of trade and commerce
• Criminal law
• Militia, military and naval service, and defense
• Navigation and shipping
• Banking, incorporation of banks, and the issue of paper money
• Bankruptcy and insolvency
• Naturalization and aliens
• Unemployment insurance

Provinces are responsible for:

• Property and civil rights
• Administration of justice (including policing)
• Municipal institutions
• Education
• Health and welfare
• Natural resources

So a short-term federal disruption might not have much of an impact on most Canadians’ day-to-day activities. Federal employees and UI recipients would have to figure out how to survive without their paychecks and border entry points would shut down. But great news! Your criminal prosecution can go ahead on schedule because, while criminal law is controlled by the feds, lower criminal courts are provincial.

On the other hand, consider how federal transfers contribute between around 15 percent (Alberta) and 40 percent (Atlantic provinces) of provincial budgets. And Toronto’s municipal budget, for instance, includes around 15 percent in transfers from the province, and another five percent from the federal government. So it wouldn’t take long before all levels of government begin to feel the heat.

I’m not suggesting we change Canadian federalism (good luck trying). But a province that’s reduced or eliminated its own budget deficit and successfully weaned itself from incoming federal transfers would probably enjoy a smoother trip through a shutdown. Exploring the legality of temporarily taking over the payroll for critical federal roles (like Border Services), for instance, might also pay dividends when push came to shove.

I would suggest that thinking formally about these issues would be an important part of any government’s emergency planning preparedness. Yesterday was the best time to start. But today is the next best option.