More criminal lawyers have increasingly taken the view that traditional sentencing is not necessarily the most effective way of administering justice. While it’s important to have a process in place through which offenders are convicted and sentenced for their crimes, there are still many questions regarding what happens to convicts when they are sent to jail or a penitentiary. There are no easy answers as to what represents a better prison model, though there seems to be general consensus that simply warehousing people in jail does not provide an effective response in combatting crime. In a modern correctional system “the first principle is to keep as many offenders as possible out of prison” (Herbert Morrison Home Secretary United Kingdom 1944).
Section 718 of the Criminal Code of Canada recognizes that along with crime prevention initiatives, the fundamental purpose of sentencing is to contribute to respect for the law and to maintain a just, safe and peaceful society by imposing fit sanctions that have a number of goals, including rehabilitation and deterrence. However, many offenders end up coming back into the system for similar offences after serving their prison terms. So did the incarceration system fail in deterring those offenders? Did those offenders in jail receive any meaningful help to rehabilitate or reintegrate into society? Reports from the Law Reform Commission of Canada have time and again recognized the need for prison reforms with a focus on the treatment and rehabilitation of certain categories of prisoners. From the opening of the first penitentiary in 1835 in Kingston, Ontario, the Canadian prison system has undergone a number of reforms intended to emphasize rehabilitation and treatment of offenders. The question is whether those changes are good enough to address the realities of the contemporaneous criminal justice system.
In practice, criminal defence counsel find themselves dealing with different types of offenders. Recidivism levels are much higher amongst offenders who are dealing with alcohol or drug addiction and/or mental illness. As a matter of fact, the most challenging situations are those involving offenders who suffer from a combination of both heavy substance abuse and significant mental illness. A growing number of cases indicate that imprisonment, including lengthy jail sentences, is incapable of successfully rehabilitating offenders with significant addiction or mental health issues. It is in these kinds of situations that the need for alternative solutions to imprisonment is more evident than others. Many provinces are already looking into expanding prison reform, or creating mechanisms outside the court and corrections systems to better address issues regarding offender rehabilitation. The inadequacy of resources designed to help offenders to make the transition from imprisonment into the community sometimes leads to a bizarre situation in which the accused asks for a much longer jail sentence than what the prosecutor is seeking. This should be cause for concern. Perhaps the traditional classification of offenders into accidental (occasional), reformable and habitual is not adequate considering the sophisticated nature of problems that result from mental illnesses and drug addictions, and considering that each offender is different.
Some provinces have already taken steps to incorporate restorative justice models into their systems, including Nova Scotia and Manitoba. The restorative justice programs focus more on bringing the offender, the victim and sometimes members of the community together outside the courtroom setting to discuss the roots of the offending behaviour, victim impact issues, and the remedies available to assist the offender. The restorative justice system focuses on the underlying causes of offending behaviour and programs in the community that would better address offender rehabilitation. However, the offender has to consent to participate.
More programs should be made available to offenders, both in prison and outside in the community, to facilitate their transition from institutional isolation into the community. With increased focus on ways to rehabilitate those who behave criminally, we could reduce rates of recidivism significantly.
Edison L. Heba has more than 15 years of experience in criminal law, including years of work as Defence Counsel in British Columbia.