The Mark 2010

Convicted murderers should serve out the sentences handed down by a court of law, not duck out part way through.

We regrettably are no closer to being provided a cogent argument for the retention of the faint hope clause. As a prefatory statement, I note that Mr. Boyd still has not offered a source for his assertion that the Minister of Justice argued that eliminating the faint hope clause would reduce crime. He also continues to misrepresent the numbers involved in faint hope clause applications when he calls the possibility of a jury inquiry “unlikely” – National Parole Board statistics indicate that at least 83 per cent of applications for faint hope review result in a jury hearing.

More saliently, my views in this debate are mischaracterized: nowhere have I argued that punishment trumps deterrence, nor that murderers “need more punishment” according to some arbitrary metric – I merely have noted that the Criminal Code of Canada provides that first-degree murderers be sentenced to life imprisonment, without the possibility of parole for a minimum period of twenty-five years. Eliminating the faint hope clause respects that statutory minimum and the punishment levied by the trial judge.

Mr. Boyd further obfuscates when he argues that it is better to offer a small carrot towards the end of a lengthy term of imprisonment, and that the faint hope clause is the best mechanism by which to accomplish this. What he overlooks is that such a carrot already exists: the sentence for first-degree murder is life imprisonment without the possibility of parole for twenty-five years – the “carrot” is that good behaviour will entitle the convicted murderer the possibility of accessing parole at the twenty-five year mark, otherwise they will remain imprisoned “for life”.

The faint hope clause does not offer a carrot “towards the end” of the imprisonment term – it inserts it right into the middle of the term, undercutting the initial sentence. Worse, if the purpose of the faint hope clause is to develop better-mannered killers, it seems counter-productive: under the mandated sentence of life without the possibility of parole for 25 years, the convicted first-degree murderer is incentivized to maintain good behaviour for a longer period of time, and has more access to supervised rehabilitation programs – at the least, one would think that would inculcate precisely the behaviour which we want. So why would we want to artificially cut that process short?

Mr. Boyd simply mangles my views when he attributes to me the notion that “denunciation trumps all other purposes of punishment”. As I stated in my earlier piece, and as I will repeat now, sentencing has certain ends mandated by the Criminal Code: deterrence, denunciation, rehabilitation, the promotion of a sense of responsibility in the offender and incapacitation. Any sentence must take a judicious accounting of all of them – and the Criminal Code directs that certain minimum periods of parole ineligibility be imposed on first- and second-degree murderers. Once again, though, Mr. Boyd declines to provide an account of how the faint hope clause furthers any of the ends required by the legislation.

From there, the argument declines into irrelevancies. While we started by talking about the state of Canadian law, Mr. Boyd points to “the more civilized nation states of Western Europe”. Even setting aside the long-discredited ethnocentric notion of “ranking” nations and/or states by their degree of “civilization,” one is led to query why Mr. Boyd focuses only on those particular “civilized” states. To take a random example, the “highly civilized” nation state of Japan still uses capital punishment – has that now become an argument for its reinstatement in Canada, or should we perhaps instead focus on what is appropriate for Canada, given our actual socio-cultural reality?

If we’re going to look abroad, let us stay with Japan for the moment. Japan adopts a much more punitive approach to criminal justice than we employ and enjoys an astoundingly low crime rate by even the standards of the “highly civilized” countries of “Western Europe”. Should we unquestioningly be adopting Japan’s methods? Or should we rather admit that criminal justice policies are deeply embedded in profoundly complex historical, cultural, demographic, and sociological matrices, and that cherry-picking and comparing the views and policies of one country against another does violence to that complexity and so should be avoided? The reference to a lower murder rate (in some unspecified “Western European” countries) is likewise of marginal relevance, unless Mr. Boyd can provide us with empirical evidence of a causal relationship between sentence lengths and murder rates.

Mr. Boyd then warns that abandoning the faint hope clause means that we abandon a tool needed to address fallibility in our justice system. But that is trying to make two separate arguments with ammunition only for one. There are undoubtedly flaws in our justice system, and it undoubtedly produces errors – so let us work to correct those. The faint hope clause does nothing at all to address them: how keeping someone in jail who should not be there in the first place for “only” fifteen years is somehow an improvement is, regrettably, beyond me. The faint hope clause makes no mention whatsoever of “mistaken or inappropriate conviction” in its eligibility criteria, and so is an unusually blunt instrument for correcting sentencing errors, since it draws no distinction between those who were properly found guilty and those who were not. If we’re wrongfully imprisoning people, let’s stop doing that, instead of offering murderers who have been found guilty beyond a reasonable doubt an early shot at freedom. Are there really no other mechanisms available to us than keeping the unjustly convicted in jail for a minimum of 15 years?

The examples provided of when the faint hope clause might assist the wrongfully convicted are fatuous. The notion that someone would “plea bargain” to a harsher sentence than what is otherwise warranted is bizarre – plea bargaining, by its very nature, involves the offering by the prosecution of the opportunity to plead guilty to a lesser charge – if someone is charged with manslaughter, why on earth would they plead guilty to murder? Why not simply plead guilty to manslaughter? In any event, if a jury has made mistakes, the presiding judge and the appeals process are present to remediate them.

But let us stop speaking in hypotheticals: more than one hundred convicted killers have been released under the faint hope clause – can Mr. Boyd point to any examples which fit his “mistaken conviction” criteria? What are those criteria, and why are they better than the criteria that the courts actually use to determine guilt or innocence? More saliently, why the eagerness not just to undercut the trial judge’s decision, but to usurp the power of review from the judiciary and put it in the hands of the corrections bureaucracy?

Despite Mr. Boyd’s insistence, the elimination of the faint hope clause can be justified on many more grounds than merely denunciation (which, to repeat, is simply one of the considerations to be taken into account): the clause poorly serves the goals of sentencing as mandated by law; it is a waste of resources; it serves to subvert judicial authority and the principle of determinate sentencing; it re-victimizes those who do not wish to be; it makes a mockery of the sentencing regime set out in the Criminal Code; and the arguments in favour of its retention do not stand up to even the barest scrutiny.