Crime, Punishment and Safety

This archived article is from July 2004. Although every effort has been made to make sure the information presented is accurate, please note that it may contain information that is out-of-date.

Making conduct criminal is society's ultimate condemnation. The purpose of criminal law was originally to punish the perpetrators of serious misdeeds such as assault, robbery, rape and murder.

Canada’s prison statistics reflect a rising use of criminal law. Since the mid 1980s, this country’s incarceration rate has become one of the highest among Western-style democracies, second only to the US. More and more people are going to jail, but crime rates have been dropping.

There is pressure to use the Criminal Code of Canada as a preventive tool on the premise that criminal penalties act as a deterrent. The “spanking law” is a recent example. In 2003, the Supreme Court of Canada upheld a decision by the Ontario Court of Appeal to allow parents to use reasonable force to discipline children. The appeal court said that no other country in the world has criminalized all forms of physical punishment by parents.

The push to criminalize unsafe or potentially harmful behavior raises important public policy issues. Are criminal penalties a more effective tool than less severe regulatory sanctions to prevent unsafe acts? Is the public better protected when unsafe behavior is treated as a criminal offence rather than a regulatory or administrative matter? Do harsher punishments for unsafe behavior bring corresponding improvements in public safety?

Criminal Offences and Regulatory Violations

Under Canada’s constitution, the federal government is responsible for criminal law. On the other hand, provincial and territorial regulations cover many aspects of day-to-day safety. This division of powers is unique to our country, making international comparisons difficult.

Occupational health and safety has always been regulated by provincial and territorial legislation. However, in 2003 the federal government stepped in, to make organizations and individuals criminally liable for harm caused at work. Bill C-45 was a response to the deaths of 26 miners in May 1992 in an explosion at the Westray Mine in Nova Scotia.

Provincial and territorial highway traffic acts regulate driving violations such as speeding and failure to stop at a red light. However, impaired driving offences are crimes. In fact, impaired operation of a vehicle is the single largest category of charges under the Criminal Code of Canada, accounting for 12 per cent of all criminal offences.

Drivers with a blood alcohol concentration (BAC) above 0.08 are subject to criminal penalties because of the likelihood that they will cause harm. Drinking drivers with BACs below 0.08 are subject to roadside license suspensions under most highway traffic acts.

Regulatory and administrative sanctions, such as fines and license suspensions, protect the public by providing a swift and certain response. In contrast, criminal justice is a complex process. In cases which would be straightforward if a regulatory approach were used, a criminal court may not be able to convict.

Justifiably, the legal process to charge and convict someone is intricate and costly. Criminal Code penalties can be imposed only if guilt is proven beyond a doubt, and many safeguards apply to protect the rights of the accused and to prevent wrongful conviction. (David Milgaard, for example, was sentenced to life in prison for a murder he did not commit.)

Individuals charged with criminal offences often choose to defend themselves rather than pleading guilty, due to the devastating personal consequences of a conviction. Even though criminal sanctions are harsh, the sentence itself is only part of the actual punishment. A criminal record is a lifelong stigma that brings ongoing restrictions on travel outside Canada and limits job opportunities.

Do Criminal Penalties Prevent Unsafe Acts?

A study in the May 2004 issue of the American Journal of Public Health casts grave doubt on the idea that criminal sanctions are in fact an effective deterrent. Researchers found no evidence that using criminal law either decreases or increases use of marijuana. Patterns of use in Amsterdam and San Francisco were similar, despite very different national drug policies. Highly punitive criminal sanctions in the US have not resulted in lower use of the drug.

This study has implications for public policy. The idea that criminal penalties deter unsafe behavior more effectively than less severe sanctions should be seriously questioned.

Research clearly shows that people are less likely to offend when they believe they will be caught. Most chronic offenders — the ones who cause the most harm— do not believe they will be caught. Penalties, regardless of severity, have little preventive effect unless they are seen to be enforced. Visible enforcement has a greater impact on safety than simply having tough penalties on the books.

Certainty of punishment has a greater deterrent effect than severity of punishment. Hence, from a prevention standpoint, the critical factors are enforcement and conviction, rather than the nature of the penalty itself.

Bill C-45 imposes criminal liability for workplace safety. While this may satisfy a desire to punish those responsible, the Canada Safety Council’s question is, will it prevent workplace casualties? Nova Scotia made comprehensive changes to its workplace health and safety laws after Westray. In the 12 years since, no workplace disaster of this magnitude has occurred anywhere in Canada. Lessons were learned, and action was taken. It will be hard to measure the preventive impact, if any, of criminal law in comparison with properly enforced regulations.

The Purpose of Sentencing: Punishment or Prevention?

There is little evidence that harsh penalties are the best way to prevent further offences.

In 1998, the Australian state of New South Wales doubled the maximum penalties for most drink-driving offences. An analysis of the impact of these harsher penalties was released in June 2004. It found that after the tougher penalties went into effect, there was a slight reduction in recidivism rates for drinking drivers. However, the changes were not substantial, and no reductions were seen in Sydney, the largest urban area in the state.

If stricter punishment is the most effective deterrent, offenders who go to jail should be less likely to re-offend when released than those sentenced to the milder penalty of probation. Yet the two groups tend to re-offend at about the same rates. There is evidence that long prison sentences without other remedial programs may actually increase the chances of re-offending after release. Very brief incarceration does appear to reduce recidivism with first-time offenders.

Canada’s growing prison population, mounting evidence that jail time does not reduce the chances of re-offending, and other factors have led to increasing use of conditional sentences. While the public tends to view such sentences as “soft”, they allow the judge to tailor the sentence to fit the crime and the individual. A recent study found that offenders preferred house arrest but found it no easier than closed custody. Conditional sentences can establish an environment for positive behavior change.

Some want to eliminate conditional sentences for impaired driving causing death or serious injury, in favor of jail time. This demand may be driven by a sense of justice based on punishing offenders for the devastation they have caused. However, if the primary objective is to prevent them from continuing to drink and drive after their sentence has been completed, house arrest offers more potential. Conditions can be set, for example, to address drinking problems, limit the people with whom the offender can associate, and ensure the licence suspension is observed. If an offender can be rehabilitated, conditional sentencing makes sense from a safety standpoint.

Judges determine the right balance of punishment and prevention within limits set by the law. Legislators therefore must allow sanctions to address risk factors which led to the offence in the first place, such as alcohol dependency, relationships and attitude. For crimes related to impaired driving, removing sentencing options could compromise public safety.

Put Safety First

Prior to the June 2004 federal election, the justice minister introduced criminal legislation to deal with drivers impaired by drugs. However, drug-impaired driving is a very complicated issue.

Defensible criminal impairment levels have not been established for substances other than alcohol. To complicate the matter, some drugs, such as cannabis, can be detected in the body long after their effect has worn off. If and when criminal impairment levels can be set, tools will have to be approved to measure those levels, and police trained to use those tools.

Criminal legislation is premature. Yet immediate action is needed to protect the public. The Canada Safety Council has urged provincial and territorial governments to consider imposing administrative license suspensions when police have reason to believe a driver’s ability is being adversely affected by any drug, legal or illegal. Highway traffic acts could easily incorporate such a measure to take drugged drivers off the road in the interest of public safety.

Prevention is a more challenging goal than punishment. Yet in the long term, it is far more cost effective. Regulatory approaches often provide the most effective tools to prevent unsafe behaviour, provided the measures are well-enforced and supported by public education. To achieve some safety outcomes, legislation may not be needed at all; for example, increased public awareness may lead to the desired outcome. Where there is malicious intent or wanton disregard for safety, criminal law is appropriate.

Positive change is achieved by approaches that apply human psychology to an objective analysis of the problem — not by laws based on fear, retribution or political expediency.