Consultation with Canadians report - Criminal Justice System
5. Key findings
5.1. Guiding principles of the justice system
- The criminal justice system should be based on respect, fairness, collaboration, compassion, and inclusiveness.
- Objectives of the criminal justice system should include preventing crime, holding people accountable, rehabilitation, and repairing the harm done by crime.
- The criminal justice system should take a multi-sectoral approach to justice with better integration with other social systems (e.g., health, education).
- The focus should be on improving outcomes for victims and offenders.
When asked to rate the importance of a number of Canada’s criminal justice system objectives, the majority (88%) of Choicebook respondents rated “helping to prevent a person from committing a crime in the first place” and “holding people accountable for their behaviour” as important. A majority (86%) of respondents also said that “providing support and alternatives to individuals to reduce future offending” and “helping repair the harm caused by a crime by promoting offender responsibility and acknowledgement of the harm caused” are important. A majority (81%) of respondents also said “helping a person who has committed a crime reintegrate back into the community” is important. There was less consensus about “punishing a person who has committed a crime while deterring others from similar behaviour,” though it was still rated as important by the majority (60%).
Participants at in-person roundtables discussed broad, guiding principles for a transformed criminal justice system. Many suggested that the justice system should be based on the following principles: respect, fairness, transparency, accountability, collaboration, compassion, intersectionality, inclusiveness, and human dignity. Many also stressed that the system should take a multi-sectoral approach to justice that better integrates itself with health and social services. Prevention was another key idea including increasing funding to address the root causes of crime and using incarceration as a last resort. Several participants suggested adding the Teachings of the Seven Grandfathers, an Indigenous moral tradition, as a basis of the Canadian justice system: truth, humility, honesty, love, wisdom, bravery, and respect. Others said the overarching goal of the justice system should be to achieve the best possible outcomes for both victims and offenders, using restorative approaches where appropriate and rehabilitative core principles (i.e., as opposed to punitive). Some said the criminal justice system should take an evidence-based, decision-making approach.
Participants on online platforms cited many of the same concepts, including the need for a greater emphasis on rehabilitation. Several participants also emphasized the importance of maintaining the principle of neutrality in any transformed justice system, such that there are no systemic biases favouring the accused or victim.
“Jails in Canada should be places where people can learn what opportunities are available to them in our great country and the harm they cause people in the process of committing crimes.”
5.2. Redesigning the Criminal justice system
- The criminal justice system requires change.
- Changes should be made to sentencing – including less severe sentences for low-level, non-violent crime, more severe sentences for violent crime, and greater use of alternative measures.
- Promote a more restorative approach to justice – healing and rehabilitation for both offenders and victims, and the consideration of circumstances.
- Improve integration with other social systems like mental health, addictions services, and social work.
- Prevent crime by addressing root causes: education, poverty, health, etc.
- Provide ongoing training for all officials working in and alongside the criminal justice system on trauma and systemic biases (e.g., racial, gender).
- Ensure diverse representation in criminal justice system appointments (e.g., judges) and hiring.
The criminal justice system needs significant change
All Choicebook participants said Canada’s criminal justice system requires some degree of change. Half (50%) of participants said the criminal justice system requires “significant change” and another 23% said “complete transformation” is needed (23% said “moderate change” and 4% said “small change”). Participants were slightly more likely to say the criminal justice system needs change after completing the Choicebook than before.
About half (51%) of Choicebook respondents said the Choicebook exercise helped them learn more about the issues facing Canada’s criminal justice system (23% said that some of the information surprised them). After completing the Choicebook, 16% of respondents said they are now thinking differently about the criminal justice system.
Suggestions about sentencing were the most common among Choicebook responses about redesigning the criminal justice system from scratch. Many respondents said they would not sentence perpetrators of non-violent, minor, and/or “victimless” crime (e.g., vandalism, petty theft) to traditional jail sentences. Instead, they would sentence these offenders, especially first-time offenders, to community service programs or counselling to reduce the risk of reoffending and to build deeper community connections.
Others said these offenders should be required to participate in a mediated resolution process, or to pay restitution to those harmed. Most respondents felt that using alternative sentencing to avoid criminal records for low-level offenders would benefit offenders and society equally; an offender’s employment opportunities would not be hindered by a criminal record, leading to a better chance at economic independence, a greater sense of community, and a reduced risk of recidivism. Many respondents also noted that diverting low-level offenders out of the traditional court system would help reduce backlogs and delays.
“I would focus on improving the rehabilitation element of the justice system. Prison can often be the correct solution for major offences, but excellent rehabilitation resources and reintegration programs should be available to prevent people from reoffending or landing in the same social or economic circumstances that contributed to their initial difficulties. Having completed the Choicebook, I see that minor offences and chronic offenders are a major part of the system at present. Using restorative justice or other alternatives would be a good idea to streamline the system and allow for focus to be put on the treatment of major offenders.”
Other respondents said that they would modify sentencing to reflect the severity of a crime, taking into consideration relevant factors like repeat offending and public safety. Generally, participants felt that judges should be allowed to exercise discretion in sentencing based on the case, but that perpetrators of violent crime causing bodily harm (e.g., murder, assault, sexual assault), particularly cases with child victims, should be sentenced to longer periods of incarceration than the current norm and with fewer or no chances of parole.
Choicebook respondents also said that perpetrators of minor, non-violent crime (e.g., drug possession for personal use) and first-time offenders should receive less severe sentences. Although generally in favour of “harsher” or “stiffer” sentencing for serious offences, respondents were generally not in favour of mandatory minimum sentencing.
“Abolishing minimum sentences... Providing more resources to the provinces dedicated to diversion. A more holistic consideration of the offender’s life and the impacts of the justice system on the offender’s community and family. Ensuring and entrenching judicial discretion and providing judges with more tools than traditional means of sentencing.”
A small number of Choicebook respondents said that mandatory minimum sentencing should be imposed for all offences.
Several Choicebook respondents stressed that any sentence should consider the root causes of crime, including economic factors (e.g., poverty), histories of trauma (e.g., childhood abuse), systemic oppression based on race, gender, or sexual orientation (e.g., historic marginalization of Indigenous peoples, discrimination against transgender Canadians). Respondents felt that sentences aimed at addressing the root causes – whether as an alternative to, or integrated with, incarceration – would be both more compassionate and more efficient (e.g., reducing the risk of recidivism and incarceration costs). Some Choicebook respondents said culturally sensitive, community-based alternatives like healing circles would be more appropriate and effective for some Indigenous offenders.
“More diversion away from the criminal justice system; greater consideration for those individuals dealing with poverty, inadequate or no housing, educational limitations, social barriers/stigma…) and/or mental health issues.”
A few Choicebook respondents maintained that an offender’s personal circumstances or experiences are not relevant to sentencing decisions and that all crimes should be punished the same way.
Restorative justice was the second most common topic among Choicebook responses about redesigning the criminal justice system. Respondents talked about restorative justice as a high-level, guiding principle of a redesigned justice system rather than just an alternative sentencing measure. Respondents said that a redesign of our criminal justice system should be based on restorative values, rather than focused on punishment or retribution. Participants noted the positive outcomes of a restorative approach for offenders, victims, and communities and explained that, whether as an alternative to incarceration or in conjunction with it, restorative programming can reduce recidivism, rebuild community trust, and reduce court delays.
While many people said they would only allow restorative options for low-level offences, others said victims of violent crime, too, can find restorative justice more effective in promoting healing than the typical court and sentencing process.
“Restorative Justice would play a much greater part in our system, beginning with young offenders, as is the case in some places, but not just for young offenders. I believe that can help both those who commit crimes and those victimized. It would not always be appropriate, but there would be more space in courtrooms for the trials that need to be there. We need a people-centered system rather than a punitive-centered one.”
Collaboration between criminal justice and other social systems
Better integrating the criminal justice system with other social systems (e.g., mental health and addictions) was the third most common topic among Choicebook responses about redesigning the criminal justice system. Respondents suggested engaging mental health and addictions experts at all levels of the justice system to better serve both accused/offenders and victims (e.g., paired with police officers, initial apprehension assessments, in-court support, corrections programming). Many stressed that a criminal justice system cannot be effective at reducing crime and improving outcomes without well-funded and comprehensive mental health and addictions services serving as fundamental pillars.
Many respondents said that making mental health and addictions support services more accessible to all Canadians would help prevent crime. A few people noted that separate mental health-specific courts (i.e., similar to civil or family courts) would more fairly address accused/offenders with mental health and addiction issues, while improving court efficiencies.
“Proper mental health supports and hospitals to keep people with mental health issues out of [the criminal justice] system. Also, there are a number of individuals with developmental issues that do not belong in our system… More rehab for substance misuse and alcohol misuse... shorter wait lists. More referrals and drug [treatment] court. If the offender is in custody more services [should be available] especially when in remand. Sometimes offenders get released and the courts have nothing set up. Should be able to have a social worker help with that. Same with the sentence side of custody... not enough services to set things up for release.”
Root causes of crime
Addressing the root causes of crime as a method of crime prevention was another common topic among Choicebook responses about redesigning the criminal justice system. Many respondents noted that an effective justice system would focus as much on preventing crime by addressing the root causes of crimes (e.g., social inequality, poverty, mental health issues, and systemic discrimination) as it does on punishment and rehabilitation. Participants suggested concrete ways to address root causes and reduce crime overall, including increasing economic opportunities for marginalized groups and eliminating systemic factors like criminalizing drugs and over-policing racialized communities, which they noted have led to the overrepresentation of specific groups in the criminal justice system.
A key focus for participants was education. Themes included making quality education more equally accessible for children of all backgrounds, regions, and abilities; teaching Canadians from an early age about the concepts of consent and gender equality (i.e., to prevent sexual assault and gender-based violence); and educating Canadians on the resources available to cope with any number of issues – from trauma to unemployment.
“I would ensure that the redesign of the justice system goes hand in hand with a redesign of other social supports, such as education, health, and working conditions/pay, because when these other systems fail, they produce marginalized people who are at significantly greater risk of committing crimes.”
Rehabilitation was another frequent topic among Choicebook responses about redesigning the criminal justice system. Participants called for more programs and services to prepare offenders in prison for reintegration with society. Education, job training, and life skills were often cited as important rehabilitative programs, in addition to comprehensive mental health, trauma, and addictions counselling. Some people suggested that these programs be community-based in order to promote offenders’ connections to their communities, even while incarcerated.
Respondents noted that evidence-based rehabilitative services should not stop once an offender is released from prison; rather, long-term, holistic support services would automatically apply to all former inmates to ensure a smooth transition into public life and reduce or eliminate their likelihood of reoffending. Respondents said this kind of rehabilitation would not only improve outcomes for offenders, but also improve public safety and trust.
“More focus on rehabilitation, particularly for those with a record of many small offences. It is likely in those cases that increased social supports and increased access to treatment for mental health or substance abuse could target the root of many minor offences and help those who may have offended to become contributing members of their communities.”
A few respondents said that our corrections system should not include rehabilitative services since the objective should be to “punish” individuals.
Concern about victims was another common topic among Choicebook responses about redesigning the criminal justice system. Respondents said they would improve and expand supports and services for victims of crime when redesigning the justice system. A number of respondents said that the justice system should be more victim and trauma-centred. Some said victims should have the option to pursue restorative justice options instead of the traditional court system, while a smaller number said victims should have a “say” in sentencing decisions.
Respondents stated that to prevent revictimization and further trauma, victims of sexual assault should not be required to repeat their account ( for example, initial statement, preliminary hearing, and trial) or be required to testify (i.e., give evidence in open court).
A few people suggested that the burden of proof be placed on the accused in sexual assault cases, potentially in a separate “sexual assault court” setting. Others stressed that the principle of presumed innocence for all accused persons must be upheld in any redesigned system.
“It needs to be more victim focused, taking victims’ needs into consideration. Obviously, it will never please everyone; however, there needs to be a healthy balance between victims being heard, crime deterrence and offender accountability.”
Training for officials working in or alongside the criminal justice system was another common topic among Choicebook responses about redesigning the criminal justice system. Respondents noted the need for training police officers, lawyers, judges, juries, corrections officers, and social workers on how to recognize and eliminate personal and systemic biases related to race, gender-based violence and sexual assault, sexual orientation, mental health, addictions, and poverty. A number of respondents felt that such training would enable criminal justice officials to address the needs of communities, victims, and offenders more fairly, effectively, and compassionately.
Respondents also suggested that the criminal justice system should ensure more diversity in hiring and appointment processes (e.g., more female and ethnically diverse judges) and on juries (e.g., more Indigenous Canadians). A few respondents said policing should be more community-based and focused more on problem solving than apprehension, with the goal of reducing arrests and charges for low-level offences, while better diverting offenders and victims towards more appropriate services and supports.
“Methods to address systemic discrimination present in Canada's criminal justice system that exist most notably against Indigenous and black Canadians, but also against [people of colour], those with mental illness and addictions, and the poor must be integrated in the very infrastructure of the criminal justice system”
Respondents suggested other notable, though less common, themes and ideas for a redesigned criminal justice system, such as:
- prioritize the reduction of delays in criminal investigations and trials;
- improve access to the justice system (e.g., expand the availability of legal aid, simplify the Criminal Code), particularly for marginalized or vulnerable demographics;
- modify court-ordered conditions (e.g., for bail, probation, parole) to make them more flexible for individual offenders and reduce backlogs or divert administration of justice offences; and
- hire more judges and Crown attorneys and expand court hours (e.g., night court) to expedite delayed or backlogged trials.
Suggestions for redesigning the criminal justice system from in-person roundtables, included better integrating mental health and assessment services, incorporating victim and trauma-informed best practices, increasing accessibility and supports for marginalized groups, particularly in northern and remote communities, focusing on crime prevention and addressing root causes, and sensitivity education/training for criminal justice system officials.
Participants at in-person roundtables discussed allowing Indigenous communities to run their own justice systems (e.g., community-based healing lodges instead of prisons). Many of these discussions also focused on decriminalizing drugs, expanding community services and supports, addressing funding gaps, and improving equity and fairness across the system.
Similar themes were expressed by individuals on various digital platforms (email, Reddit, Twitter). Increasing transparency and accountability of criminal justice officials (e.g., police officers, Crown attorneys), reducing the overall costs of the system, and prioritizing financial and corporate crime were widely shared ideas.
Another idea included the creation of a government body whose main role would be to provide national leadership for Canada’s provincial and territorial correctional systems.
5.3. Victims’ experience
- Provide free, automatic, comprehensive legal and mental health services/supports to victims.
- Offer alternative means of victim testimony at preliminary hearings and trial – closed-circuit television (CCTV), written testimony, etc.
- Take a trauma-informed, victim- centered approach to criminal justice.
- Ensure automatic information sharing with victims about the criminal justice process (e.g., investigation, trial, sentencing, parole) and restorative justice.
- Focus on victims’ rights in the context of gender-based violence.
Choicebook respondents were presented with the story of Sarah, a woman who is sexually assaulted by an acquaintance. Sarah reports the assault to police, charges are laid, and she is required to testify at a preliminary inquiry, after which Sarah decides she does not want to re-live her trauma again during a trial. She suffers from insomnia, anxiety, and a lack of focus.
The Victims’ Experience, a video featuring Nicole, a woman who was raped by someone she knew. Nicole describes her feelings of shame and helplessness participating in the trial against the accused, and how she feels that the justice system fails victims.
Most Choicebook respondents said that victims like Sarah could be better supported by the justice system by providing free, automatic, comprehensive legal and mental health victim services and supports. Respondents said victims should be automatically provided with a trained, knowledgeable advocate to guide them through the legal process on a full-time basis. Others said victims should be entitled to publicly funded legal aid/counsel to represent the victim’s personal interests, like accused persons. Most respondents also said victims of sexual assault should have access to a full suite of mental health resources, including psychologists or psychiatrists specializing in sexual trauma, a social worker to accompany them at all stages of legal proceedings, mentors who “have been there before” (e.g., experienced sexual trauma and healing), group counselling, and therapy animals. A common theme was that legal and mental health services must be well funded, fully staffed, and free for victims in order to be effective.
“Victims should have an advocate offered to them before they give their initial statement, just like offenders are given a lawyer. Victims should also be given time between the incident and the [police] report to seek medical attention to ensure they are not in shock or otherwise unable to represent themselves to the fullest.”
The next most common response was to offer victims alternative means of testimony to prevent revictimization (e.g., from facing the offender in court). A range of alternative options were identified, including closed-circuit television (CCTV) or video conference testimony, written testimony, private testimony with only essential parties present (e.g., judge, attorneys), and recording the victim’s initial statement to police for use in court.
“The ability to re-use testimony in a video format, so her initial testimony could be recorded and played so she does not have to re-tell it over and over again. She could be allowed to not be in the room during the video playback.”
Similarly, many respondents said repetition in victim testimony at preliminary hearings and trial should be reduced or eliminated in order to protect victims from having to repeatedly explain traumatic experiences, which can cause additional trauma or revictimization. Others said preliminary hearings should be eliminated altogether to reduce the number of times victims have to recount traumatic experiences and speed up the trial process.
Trauma-informedFootnote 4 and victim-centered approach
Another common idea was to take a trauma-informed, victim-centered approach to criminal justice. For many respondents, this meant that victims could have confidence that they are believed and that their well-being is valued by the criminal justice system. Others specified that the criminal justice system must operate on a basic understanding of the effects of trauma on victims, like memory loss or continued contact with abusers, and not “weaponize” these effects against victims to undermine their credibility or label their claims as untrue. Some respondents said that further privacy protections should be applied in sexual assault cases to ensure that the victim can begin to heal without the pressures of public scrutiny.
“I think the courts should be able to take judicial notice of the fact that many of the hallmarks of unreliable evidence in most cases - such as a poor memory, inconsistent versions of events, or continued contact with the attacker - can actually be and often are confirmatory of an assault and trauma having occurred. This option may at least legitimize the symptoms of trauma experienced by female victims of sexual assault.”
Improving the availability and effectiveness of existing victim protections was another top theme. A number of respondents said, for example, that the Canadian Victims Bill of Rights is not consistently applied or upheld in all cases and that its tenets must be strengthened. Many said that information about the justice system, victim services, and case updates should be provided automatically, as opposed to upon request, because many victims are never made aware that they can request information. Some said that victims should be given assistance in seeking restitution from offenders – another aspect of the Canadian Victims Bill of Rights that victims are often unaware of or find too difficult to pursue while coping with trauma.
A few respondents said that nothing more can be done to support victims beyond the protections that already exist under the current Victims Bill of Rights, without compromising the rights of the accused (e.g., presumption of evidence, burden of proof).
“Faire de la charte des droits des victimes une garantie juridique au même titre que les droits des contrevenants. Donner de vrais recours en cas de bris de cette Charte. Donner l'option de procéder par médiation plutôt que judiciaire afin qu'elle soit une partie active, elle peut ainsi comprendre les perceptions de l'autre, répondre aux vraies questions existentielles qu'elle se pose et obtenir la réparation qui lui convient.”
The final top response to this question was that a restorative justice option and/or community-based healing program would better support victims as they navigate the criminal justice system. Many respondents explained that a restorative justice process would serve the dual purpose of rehabilitating the offender and healing a victim’s trauma. They said if victims are provided with information about restorative justice processes, it might spare them from having to repeatedly explain their traumatic experience in an adversarial environment (i.e., the courtroom) and could provide a feeling of “closure” that is often unattainable through the traditional court process. A few people noted that certain victim services, like counselling or healing circles, would be most effective if executed at the community level, rather than embedded within the criminal justice system.
Other notable, though less common, ideas about how to better support victims included:
- training for judges, police officers, lawyers, juries, etc. on sexual assault and gender-based violence;
- improving the speed and efficiency of sexual assault investigations and trials;
- restricting inflammatory lines of inquiry in cross-examination about victims’ past sexual histories, what they were wearing, and other information not relevant to the case;
- stronger/stricter sentencing for convicted sexual offenders;
- financial resources for victims who must take leave from work or pay for childcare while engaged with the justice system;
- long-term legal and health services after the conclusion of trials (e.g., notification if incarcerated offender is granted parole, extended counselling);
- greater focus on prevention measures to reduce sexual assault in the first place; and
- a separate court system for sexual assault cases (e.g., which uses a different threshold for what constitutes reasonable doubt).
Participants at in-person roundtables also raised issues related to victims’ experience, particularly in the context of sexual assault and gender-based violence (e.g., spousal abuse). They called for more accountability for offenders as well as increased rights, supports, and protections for victims (e.g., access to information, legal and psychological supports, recorded or video conference testimony). Additionally, participants suggested training police officers, lawyers, and judges on the science of trauma (e.g., effects on memory loss) and encouraging police to use “active listening” techniques when taking a victim’s statement as opposed to criminal interrogation techniques. Participants also advocated for the legalization of sex work. Significant focus was paid to the mistreatment of Indigenous victims, especially Indigenous women, by police and court officials with little to no knowledge of Indigenous culture or forms of communication. Participants suggested implementing specialized courts, community-based panels, and problem-solving methods to better handle cases involving Indigenous victims.
Participants on email and social media focused on increasing victims’ rights and participation in the criminal justice system, imposing more severe sentences for sexual offenders, access to free legal aid, and sensitivity training for justice system officials to create a safer environment in which victims report crimes. Participants also touched on privacy measures for both victims and the accused (e.g., name publication bans for both until trial concludes) and more practical and effective protective measures for victims of domestic violence.
5.4. Indigenous overrepresentation
- Dismantle systemic biases in the criminal justice system.
- Educate criminal justice stakeholders on Indigenous issues – intergenerational trauma, history of colonialism, etc.
- Implement an Indigenous-controlled court system based on Indigenous culture, overseen by Elders; community-based healing.
- Address root causes of Indigenous crime, including intergenerational trauma, addiction, and problems with food security, access to clean water, and equitable education as part of Canada’s reconciliation efforts.
- Standardize application of Gladue principlesFootnote 5 that consider the special circumstances that affect Indigenous people and alternatives to incarceration.
Addressing systemic issues and root causes
Two videos on Indigenous overrepresentation were featured in the online discussion forum. The first video was about the experiences of Jorgina, an Indigenous woman whose struggles with drug and alcohol addiction led to incarceration in a federal prison. Jorgina’s parents are residential school survivors, and she and her siblings spent their childhood in foster homes where they endured sexual, physical, and emotional abuse.
The second video was about Devon, an Indigenous man who has been in and out of prison since he was 12 years old. He describes the impact of poverty, addiction, and residential schools on his childhood, how he began committing criminal acts, and how he is turning his life around with the help of an organization called STR8 UP.
Participants who discussed Jorgina’s story and Indigenous overrepresentation frequently said that the criminal justice system must address the entrenched, systemic biases against Indigenous Canadians that have led to their overrepresentation in the criminal justice system. To begin to dismantle these biases, many suggested comprehensive education on Canada’s colonial roots and Indigenous history and culture in Canadian schools, as well as sensitivity training for police officers, judges, and other justice system officials about the effects of intergenerational trauma on Indigenous communities in order to apply a trauma-informed lens. Others said more must be done to ensure greater Indigenous representation on juries and a few suggested reforming the criminal pardons system. Criminal records were described as a “life sentence” for many Indigenous offenders.
[In response to another participant]: “You say we shouldn’t be looking to better support Indigenous people because we shouldn’t be ’treating one group of people any different from the rest of society,’ as if that isn’t what’s being done already. We are looking to ’treat them differently’ for the sake of compensating [for] the ways in which we have in the past, and still currently are. If you want to say, ‘two wrongs don’t make a right,’ that won’t work in this situation. As much as we’d like to ignore our differences and treat each other the same, we can’t be colour-blind. The sad reality is that we have established these systems that DO see race, and we can’t pretend they aren’t there if we want to fix that. In order to dismantle these biased systems, we must acknowledge them and operate accordingly. We aren’t trying to claim that Indigenous offenders are less responsible for their actions, but rather understand that there is clearly a lot more at play here than individual choice. In doing so, we can figure out ways to better support their community for the purpose of ultimately prevent[ing] these crimes being committed in the first place — which will be beneficial to all Canadians! After all, no one would argue against lower crime rates.”
A number of people also said the root causes of Indigenous crime must be addressed in order to reduce over-representation of Indigenous Canadians in the justice system, like ensuring access to clean drinking water, adequate housing, food security, quality education, and economic opportunities.
Another common theme was to allow Indigenous communities to control their own justice systems (e.g., Indigenous courts) based on traditional Indigenous culture and overseen by Elders and other community leaders. Restorative justice and other alternatives to traditional sentencing (e.g., healing lodges) were cited as more effective than incarceration in rehabilitating Indigenous offenders and preventing future crime.
“One recommendation would be to follow through on the proposals given by previously assigned authorities. This would be acting on the ideas of an organization that specifically deals with these issues and would be a show of faith to them. An example would be the calls to action from the Truth and Reconciliation Commission Call to Action 7, states " ‘We call upon the federal government to develop with Aboriginal groups a joint strategy to eliminate educational and employment gaps between Aboriginal and non-Aboriginal Canadians.’ Completing this would benefit the criminal justice system because increased education reduces property crime.”
It should be noted that some respondents said that the criminal justice system should treat Indigenous and non-Indigenous offenders the same.
Participants attending in-person roundtables discussed similar themes as those in the online discussion forum, including eliminating systemic biases, adopting a trauma-informed approach to justice, creating standalone Indigenous courts, and addressing root causes – particularly related to Indigenous youth mental health. Additionally, participants spoke about the harmful dynamic of over- and under-policing of Indigenous communities, including the disproportionate policing of minor offences like public intoxication and lack of attention to serious offences like abuse. They also discussed the under-application of Gladue principles to Indigenous women offenders compared to Indigenous men, as well as the need to implement culturally sensitive, long-term rehabilitative services for Indigenous offenders and improve access to quality education for all Indigenous youth no matter where they live.
Participants called for mentorship programs and greater access to education and mental health services to address the root causes of crime among Indigenous youth.
5.5 Mental health and addictions
- Prioritize treatment over punishment for people with mental health and addictions issues in the criminal justice system.
- Implement specialized mental health courts.
- Improve integration between criminal justice and health care systems, including robust mental health assessments and support services for people in jail.
- Provide comprehensive specialized legal representation for accused persons with mental health issues.
- Decriminalize some or all drugs.
A video on mental health and addictions features Marie-Eve Sylvestre, a Professor of Civil Law at the University of Ottawa, explaining the challenges faced by individuals with untreated mental health and/or addictions issues in the criminal justice system.
Treatment over punishment and increased mental health supports
The majority of participants stressed the need to prioritize treatment over punishment for accused/offenders with mental health or addictions issues. Participants suggested establishing separate mental health courts to which accused/offenders with mental health or addiction issues would be diverted upon first contact with police. Police officers and other justice officials would need specific training in harm reduction and treatment practices, as well as closer integration with community-based mental health and addictions services. Training and regular communication among social support systems would help reduce stigma related to mental health and addiction, inform public misconceptions about mental health issues, and promote public health and safety.
“The country needs more drug treatment courts [DTCs]. It's not difficult to distinguish between individuals who are criminalized and dangerous at their core and those who find themselves breaking the law to feed addictions. In my time prosecuting, I saw a lot of success through drug treatment court. The sort of success that incarceration and general probation orders do not get. DTCs may be expensive, but as society starts to come to grips with narcotics being a health crisis, DTCs need to be in place to provide a solution that works.”
Participants called for increased supports for people with mental health and addictions issues in the criminal justice system including better, more comprehensive legal representation (e.g., legal advocates, legal aid) and increased access to mental health and addictions treatment in custody. Several people emphasized that mental health and addiction programs must be properly funded and evidence-based. The decriminalization of all drugs was another common theme.
“The majority of people suffering from mental illness don’t belong in the criminal justice system. Many of those mentally disabled people are being housed in jails instead of mental health facilities. There aren’t enough mental health beds in hospitals, and the reaction of police to mentally challenged offenders is one of enforcement, rather than one of treatment. While dangerous mentally ill offenders need to be housed in a protective custody facility, many of the mentally challenged offenders could be better served with treatment programs. We need to expand the number of mental health beds available in our hospitals and reduce the number of mentally ill people being housed in jails. The only mentally ill people who should be in jails are dangerous offenders.”
At in-person roundtables, participants highlighted the need to better integrate the health and justice systems to meet the complex needs of accused/offenders – and all Canadians – with mental health or addiction issues. Increased funding for mental health services was a frequent topic. Service delivery was also raised as an area on which justice and health officials should focus, including a public education campaign about mental health and addiction treatment programs. Multidisciplinary teams (e.g., health, education, justice) formed by or within community organizations could help ensure comprehensive monitoring and follow-up for at-risk individuals.
Participants pointed out that in order for the justice system to allocate or mandate appropriate mental health and addiction supports, an accused/offender must be assessed first and then referred to the forensic mental health system, and that many low-level offenders often go untreated. Participants said that providing mental health and addiction support to all offenders would reduce recidivism rates and court delays. In addition, some participants noted that the use of administrative segregation (i.e., solitary confinement) can be particularly damaging for individuals with mental illness.
Other participants discussed implementing a holistic approach for Indigenous offenders – one that would target the unique mental health and addictions challenges facing Indigenous communities because of intergenerational trauma, systemic bias, and a lack of access to basic needs. Holistic services would be available at the community level to prevent and resolve crime (e.g., through courts run by Indigenous people, healing lodges), and after a case has been completed or the offender is released from prison.
Participants focused on the need to implement specialized mental health courts, decriminalize drugs and increase the number of safe injection sites, and pair police officers and paramedics with mental health and addictions experts. Some brought up the importance of correctly diagnosing mental health conditions as early as possible, including obtaining an assessment of Fetal Alcohol Spectrum Disorder (FASD) and brain injuries. Many participants said that crimes committed because of mental health or addictions issues are often preventable, and thus more resources should be dedicated to detecting and treating these issues.
5.6. The root causes of crime
- Address the root causes of crime, including poverty, unemployment, inadequate housing, and mental health and addictions issues
- Improve mental health and addictions assessments, services and accessibility to prevent crime.
- Implement problem-solving and community-based approaches to break the cycle of crime.
- Addressing root causes is more cost-effective than incarceration in the long term.
Choicebook respondents were presented with the story of Denis, a young Inuk man with a lengthy criminal record of minor offences and breaches, who is sentenced to one month in jail after being arrested and charged for drawing graffiti on a bus shelter while intoxicated. Denis has mental health issues, struggles with drug and alcohol addiction, has trouble holding a steady job, and occasionally sleeps on the street. His mother is a residential school survivor and struggles with alcohol addiction.
A majority (89%) of Choicebook respondents said it is important to address the root causes of crime.
Most participants said that addressing the root causes of crime in Denis’ case should include
- increased access to education/training;
- housing support;
- ensuring mental health services are available and accessible;
- substance abuse programs;
- culturally appropriate resources; and
- increased supports to parents and families.
Mental health and addictions treatment and other social supports
Choicebook respondents most commonly indicated that ensuring mental health services were available and accessible would have the biggest impact on addressing the root causes of crime in Denis’ case. While many respondents felt that mental health services alone would have the largest impact, others suggested they should be combined with other types of supports and services, like addiction treatment programs.
“Mental health support is the first factor; if Denis can gain greater control of his emotional well-being, this can provide the foundation for him to make further moves that could increase his sense of self-worth and self-reliance.”
Many respondents felt that supporting substance abuse programs would have the greatest impact on addressing the root causes of crime in this case. Many identified issues with substance abuse programs, including long wait times and lack of staff. They also acknowledged the stigma that surrounds substance abuse and mental health.
Many respondents emphasized the need for housing support in combination with mental health and addiction services, and support for other basic needs like food and clothing
“Housing is critically important. When people are homeless there are so many factors at play related to the transience of their situation, and when a safe, secure home is established many of these related problems are alleviated. When a person has some certainty about where they will sleep tonight, it opens up a lot of psychological space for other things, like building a future.”
Others called for more accessible education and training, including early childhood education, after-school programs, and guidance counselors to help address the root causes of crime.
“Easier access to education. Instead of 200 hours community services, have 200 hours taking a course for a trade that is paid for by the public or upgrade basic skills ... reading, math, writing. Cheaper than imprisonment.”
Respondents frequently acknowledged the need for culturally appropriate supports and services, including community support and support from Elders.
A small group of respondents also mentioned the need for increased supports to parents and families. Several stated that such services should have been provided to Denis and his family long before he committed this offence.
Most respondents identified poverty as a key factor contributing to Denis’ situation. Many respondents advocated for a universal basic income and a higher minimum wage.
“We need to eliminate poverty and homelessness in Canada. Poverty underlies many social issues, such as crime, violence, and substance use. Canada is a rich nation full of resources. We also need access to mental health services and substance abuse treatment for people of all ages. Prevention may cost in the short-term, but it has huge economic savings in the long-term.”
Some respondents said that Denis’ case should not be the responsibility of the criminal justice system.
A few respondents said that Denis’ situation could likely not be improved, and that his crime warranted imprisonment.
Choicebook respondents generally agreed that a problem-solving approach that attempts to deal with the root causes of offending would result in better outcomes for both Denis and his community. They explained that addressing the root causes of Denis’ behaviour would support his overall health and well-being in healing from trauma and helping his mother heal from trauma, poverty, and addiction.
Similarly, many respondents said Denis’ community would benefit from a problem-solving approach by reducing crime, increasing community safety, and building trust, respect, and accountability between community members and networks of community support and resources. Some said Denis should become a mentor and role model for youth in his community with similar histories/childhood experiences.
“Charges, probation, imprisonment- all after the fact are a band-aid solution to a larger social problem. Giving a voice to communities that represent larger populations of those involved in the criminal justice system and building those communities up may create positive changes in generations to come.”
The few respondents who disagreed about these issues said that, despite his underlying trauma, Denis is responsible for his own actions and must face the consequences of the traditional criminal justice system, including incarceration and a criminal record. They said the community would be safer with offenders like Denis serving their sentence removed from society (e.g., in jail).
Another top theme raised by respondents was increasing access to a range of community-based programs and services for Denis and his peers. In large part, these respondents said mental health and addictions counselling services are essential to addressing the root causes of Denis’ crime. A number of others suggested that educational and job training programs are necessary to help Denis take control of his future and achieve independence.
Many respondents noted programs and services in Denis’ community must be rooted in Inuit traditions and cultural practices, as well as developed and administered by Inuit Elders or others with an understanding of and sensitivity to the unique and systemic challenges faced by Canada’s Inuit. Some also specified that these programs and services must be free and well-funded in order to effectively address the root causes of crime.
A few respondents felt that Denis might be too old or too “set in his ways” for community-based problem-solving programs to result in meaningful change, but that these programs could be successful if targeted to at-risk youth.
Many Choicebook respondents noted that addressing the root causes of crime using a problem-solving approach would reduce rates of recidivism, particularly for non-violent and minor offences. Overall, they agreed that all facets of society would benefit from a problem-solving approach – for example, offenders break free from the cycle of crime, communities become safer, and the criminal justice system is no longer bogged down by minor, non-violent cases.
Some respondents further noted that a problem-solving approach would be more cost-effective than the current criminal justice system in that fewer resources would be spent on short-term incarceration and repetitive case processing. A few said it might cost the government more to implement problem-solving in place of the traditional criminal justice system.
“…Punishing Denis without addressing the issues that has him running afoul of the law will do nothing to rehabilitate or reduce recidivism. We need to do much more work on educating Canadians around justice issues including those in Denis’ community. Incarcerating offenders isn't always the answer. They are people who come back out and live in our community, but if nothing has been done to address the issues that cause them to offend in the first place, what was achieved? Revolving door continues. People need to understand that having alternatives doesn't mean a 'get out of jail free card'.”
A final theme raised by respondents was the idea that the criminal justice system does not appropriately address or resolve the root causes of crime. Many respondents suggested that putting Denis in jail for one month is merely a short-term solution (a “band-aid fix”) to a long-term problem, and one that will only exacerbate the underlying issues/trauma which led him to offend in the first place. Others talked about the negative stigma associated with spending time in jail, which can further perpetuate a cycle of crime. Participants described the negative impact of a criminal record on employment, poverty, addiction issues, and the risk of reoffending. A few also noted that a month spent in jail might make Denis – a non-violent, low-level offender – vulnerable to the influences of more “hardened” or violent inmates and result in Denis committing more serious offences upon release.
Some people said that while they believe the traditional criminal justice system is still appropriate in some cases, problem-solving approaches should be better integrated into the system in order to improve outcomes for first-time offenders and their communities. A few respondents, however, felt that addressing the root causes of crime through a problem-solving approach is not a part of the mandate of the criminal justice system or Department of Justice and is instead the responsibility of child and family services, the health system, and other agencies.
“Long before many people in custody became offenders, they were victims. The impact of the early life of children cannot be overstated. When surrounded by addiction, violence, abuse, negative examples, poverty, criminal behaviour etc., the results are predictable. Incarceration is not a solution. It does not make people better. Support by a funded community agency to provide case management, counsel, life skills, and ongoing support of a wide scope is a much better option. I have witnessed the change in people when someone in the justice system engages them with positive programs and relationships. Incarceration exacerbates crime by increasing criminal knowledge and networks. If you want a different result, do something different. If you want people to behave well, treat them well. You get what you give.”
At in-person roundtables, many participants discussed the idea of addressing root causes of crime. There was consensus that more supports and services must be made available to all Canadians to address poverty, systemic racism, gender bias, mental health issues, addiction, and other fundamental inequalities that are root causes of contact with the justice system. Many participants felt that these health and social services should be community-based, well-funded, and better supported by, and integrated within, the justice system.
Participants paid substantial attention to the root causes of Indigenous crime – primarily intergenerational trauma, as well as inequitable access to basic needs like clean water, food security, affordable housing, quality education, and robust health care services. Participants stressed that the justice system must not only consider each of these factors when evaluating an Indigenous offender’s case, but actively work to address them in order to prevent crime.
At one roundtable, it was noted that Manitoba’s probation officers are trained to prepare Gladue reports involving interviews with offenders and their families. It was suggested that comprehensive training on Gladue principles for all criminal justice system officials (e.g., police officers, lawyers, and judges) could help highlight the root causes of criminal behaviour and how to address underlying conditions in sentencing through community supports and programs. Participants said that applying Gladue principles could also help offenders tell their stories and understand their personal histories in a larger context, which could eventually lead to healing.
Participants on other online platforms raised similar issues, including alleviating systemic factors like poverty, abuse, racism, addiction, and mental health issues. Some people suggested that a basic income system would minimize or eliminate many of the effects of poverty and help reduce petty and low-level crime. Others said combatting the opioid crisis should be a key area of focus and that addictions-based crimes should be diverted away from the criminal justice system toward effective treatment. A few people said that more supervised injection sites should be opened and that all drugs should be decriminalized. Some participants said the criminal justice system should work closely with health and social services to facilitate better programs and improve outcomes at all stages, while others indicated that addressing root causes falls outside the jurisdiction of the criminal justice system.
5.7. Administration of justice offences
- Consider alternative measures and community-based programming for administration of justice offences.Footnote 6
- Focus on mental health supports including treatment or counselling for accused/offenders with mental health issues charged with administration of justice offences.
- Take into account the root causes of crime when determining a sentence.
- Ensure that bail/probation conditions reflect the offence and the accused/offender’s individual/life circumstances (e.g., no ban on alcohol consumption if alcohol was not a factor in the original offence or the accused/offender has an addiction issue and there are no treatment supports).
Choicebook respondents were presented with a story about Dana, a young woman charged for violating her probation conditions by drinking and being out past curfew, conditions imposed after she was convicted of a shoplifting offence one year prior. For breaching her probation, she is sentenced to a period of incarceration and another term of probation with additional conditions.
Dealing with administration of justice offences
More than half (61%) of respondents disagreed when asked if imprisonment was a fair sentence for breaching probation conditions by drinking after curfew.
When provided with a range of options and asked how they thought breach of probation charges should be dealt with, more than half (56%) of respondents favoured alternative measures which would divert Dana out of the courts and have her attend a community-based program before pleading guilty. The breach of probation charge would not appear on her criminal record. The second most common response (21%) was that Dana should be given a conditional sentence – she would serve her sentence in the community, likely on house arrest, and the breach of probation offence would be added to her criminal record.
Some respondents provided specific suggestions for how Dana’s breach of probation charge should be addressed. The most common suggestions included community-based programming or other alternative measures, community service (e.g., cleaning highways or parks, volunteering at community-based organizations) coupled with further probation and rehabilitation programs (e.g., work skills, addiction treatment programs). Some respondents commented that community-based services would demonstrate to Dana that her actions have consequences, and some indicated that if she did not complete the community service, it should result in a more severe sentence.
Many responses centred on the need for probation conditions to reflect the offence and indicated that in Dana’s case they did not. Respondents often noted that a sentence or probation condition should be achievable and not set an accused/offender up for failure, as an alcohol restriction could for someone with alcohol abuse issues.
“Conditions were improper in the first place. What does a curfew and abstaining from alcohol have to do with a shoplifting charge? No nexus of conditions to offence. Crown should not have sought conditions and JP/Judge should not have made them.”
Another point made frequently by respondents was that a sentence should attempt to address the root causes of the offence. Just as frequent were responses recommending that Dana take part in a restorative justice program.
Some respondents felt that Dana should be subject to more severe restrictions, increased monitoring, and/or eventual imprisonment for breaches of probation conditions. Respondents who reflected on the effects of having a criminal record generally indicated that Dana’s breach should not contribute to her criminal record.
A majority (70%) of respondents agreed that other options should be available to deal with administration of justice offences like Dana’s, rather than charging her with a new offence .The most common options included community-based programs (e.g., community service), support for the offender, and rehabilitation. Some respondents suggested specific strategies to address criminal behaviour through education or training in social and/or work skills, restorative justice programs, or the involvement of a community support worker or social worker. Some respondents suggested a fine in conjunction with community service, though most focused on supports rather than punitive measures.
“A new charge and possible jail time just compounds the issue and makes it likely for her to reoffend. Doing volunteer work in the community and getting the individual in contact with positive supports sets her down a more positive path.”
Another common theme was that other options should include mental health and addiction treatment. Many respondents drew a causal link between mental health and addiction issues and Dana’s criminal behaviour and advocated for treatment or counseling to prevent reoffending.
“If the underlying issue is an addiction to alcohol, put resources into making treatment for alcohol addiction available. Waitlists and costs are often barriers to getting at the root of the problem.”
Many respondents focused on the use of alternative measures, stressing that Dana should not be prosecuted for an administration of justice offence which could instead be dealt with through pre-charge diversion, discharge from custody,Footnote 7 and/or a fine. Some respondents mentioned that more serious types of offences should still be prosecuted (e.g., assault, sexual assault), but most focused on Dana’s situation, arguing that adding to her criminal record would be counterproductive and incarceration would be inappropriate.
Respondents stressed that any viable option must address the root causes of Dana’s behaviour. Understanding the root causes of a crime and the context surrounding it was key for many respondents in considering what options to pursue. Common factors raised included gender, race, income, housing, and mental health and drug addiction.
“The justice system should consider the background and circumstances of folks like Dana who commit non-violent crimes. Why did Dana shoplift in the first place? She probably needs additional support, such as safe and affordable housing and basic income. Perhaps she needs access to mental health services. She should be connected with appropriate services in her community that can support her and help her avoid repeated offences.”
“Often the root cause of the offender's breach of their probation order is poverty or addiction or mental illness. We should be addressing those causes without criminal sanctions, which don't help the individual or society.”
Respondents suggested factors to consider in determining options other than charging an accused person with an administration of justice offence. These included (in order of most to less frequently raised):
- the severity of the breach of conditions and the original offence;
- the accused person’s criminal record, including any breaches of conditions;
- the accused person’s mental health, including addictions or the existence of neuro-cognitive condition;
- the accused person’s socioeconomic status;
- the age of the accused;
- information on why the offence was committed;
- the accused person’s family and social history;
- the accused person’s support network;
- the accused person’s employment status;
- the likelihood of reoffending versus successful rehabilitation;
- the accused person’s access to housing;
- the accused person’s ability to understand the consequences of his or her actions;
- the availability of community support programs; and
- the accused person’s race.
Participants in the in-person roundtables called for bail reform that addresses the unfair bail conditions often placed on many vulnerable accused – for example, a condition to abstain from drugs and alcohol when substance abuse programs are unavailable.
Input from social media echoed the responses provided in the Choicebook, emphasizing the importance of addressing the root causes of crime and eliminating probation conditions that cannot realistically be met by accused/offenders.
“Unrelated or unnecessary conditions should not be imposed, particularly where they are in fact impossible. For example, if an accused is an addict, requiring that they abstain from alcohol or drugs under penalty of breach is unrealistic and effectively entrapment.”
5.8. Restorative Justice and alternative measures
- Use restorative justice and/or alternative measuresFootnote 8 for low-level, non-violent offenders.
- Use restitution,Footnote 9 community service, and counselling as alternative measures for certain crimes.
- Focus on supporting victims and their families through restorative measures.
Choicebook respondents were presented with a story about Chris, a 21-year-old man caught stealing $800 from his employer. Chris is aware of his wrongdoings and has apologized to his employer, but felt he had few options as he struggles to make ends meet as a single father. He was charged with theft, to which he pleaded guilty.
Meghan, the co-owner of a café, and Carolyn, a woman who stole money from Meghan’s café are featured in a video on restorative justice. Both participated in a restorative justice process and they describe how positive it was for them and the community.
Three-quarters (76%) of Choicebook respondents identified “alternative measures” as a fair and appropriate sentence for Chris. This option would divert Chris away from the court system, allow him to attend a community-based program before pleading guilty, would not result in a criminal record, and provide access to supports intended to change his behaviour. The next most popular sentencing option was “restitution to victims” (64%) – i.e., Chris would be required to repay his employer. Less popular sentencing options included “discharge” (23%), “probation” (21%), a “conditional sentence” (13%), an “intermittent sentence” (10%), “imprisonment” (5%), and “other” (16%).
Respondents expanded further on the concept of restitution to victims. Many said restitution could be a fair and appropriate sentence for Chris on its own, while others said it should be combined with other options in order to achieve the best sentence. A small number of respondents suggested he should provide a non-monetary form of restitution.
“If Chris had the money, it makes sense that he would pay back the victim. However, if Chris didn't have the money, restitution would simply lead right back to the financial desperation that led to the crime in the first place.”
Many respondents said diversion away from the traditional court system would help address the root causes of Chris’ offence without burdening him with the stigma of a criminal record. While restorative justiceFootnote 10 can be classified as an alternative measure, it is important to note that many respondents identified this specific method as a unique option that would be fair and appropriate with regard to Chris’ sentence. Many respondents suggested that both Chris and his employer would benefit equally from a restorative option.
“Restorative justice where both the victim of the crime and the person who committed the crime get to resolve the issue, since there was no intentional violence.”
Many respondents also focused on mental health counselling, job and skills training, social assistance programs, and financial assistance as important elements of a fair sentence for Chris. Some people said these rehabilitative services could be used instead of traditional sentencing (e.g., incarceration, probation), while others felt they should be offered in conjunction with it. Transition housing was also identified as an option that should be available when sentencing offenders like Chris.
Respondents emphasized community service work as an important element of a conditional sentence, even if Chris were mandated to house arrest. Participants said this would give Chris a greater appreciation for his community, help him build strong connections, and instill a sense of respect for public and private property.
“Forced to do community work, for example, trash cleanup, remove unlawful advertisements from public property.”
Some respondents said that intermittent sentencing (i.e., where he would serve jail time on weekends, be on probation during the week, and get a criminal record) is an appropriate option in Chris’ case. Others discussed probation as an important sentencing option in this case.
A few respondents felt it would be appropriate for Chris’ employer (i.e., the victim) to have some say in, or influence on, Chris’ sentence. A smaller number said that Chris himself should have a participatory role in deciding his own sentence, in order to best meet the unique needs of his situation (e.g., family obligations, mental health issues).
A few respondents said that discharge alone would be the most appropriate sentence for Chris, and others suggested a “conditional discharge”, provided the employer was informed and consented. A few respondents said that a combination of discharge and restitution would be a fair sentence for Chris if he were able to pay back the stolen funds to his employer over time, rather than in a lump sum. This option would make repayment less burdensome for Chris, who already struggles financially and has a family to support.
Few respondents expanded on the idea of imprisonment, stricter sentencing or a criminal record as appropriate options for Chris. Many acknowledged that sentencing him to incarceration for any period of time would likely do more harm to Chris, his family, and his community.
“A criminal record would be detrimental to him if he didn't have one already and would only make the problem worse.”
Considerations in sentencing
When asked to describe the most important consideration in deciding a sentence in Chris’ case, one of the most common considerations was whether Chris apologized to his employer, showed remorse for the theft, and took responsibility for his actions. Respondents emphasized that Chris’ willingness to change and not steal again should factor into any sentencing decision.
Another frequently raised consideration was the impact that a sentence would have on Chris’ child and his ability to parent. Respondents noted the negative impact of a criminal record on an individual’s life, including employment and family. The child’s welfare in this case was a priority for these respondents.
“The sentence should not hinder Chris from being able to get a job, live with his son and care for his son. The sentence should not hinder Chris from being a contributing member of society (contributing in terms of working, raising his son, and volunteering at his son's school).”
The presence of mental illness was raised as a factor by many participants who noted the impact that mental health challenges can have on an individual’s behaviour and that mental illness deserves attention and treatment. Many respondents made connections between Chris’ depression, his inability to maintain steady employment, and his offence.
“Chris is struggling with depression and is a single father. His illness has resulted in him losing jobs and missing work, which is a cycle. He can't afford to pay for counselling and maybe not medications, if he doesn't have an employee assistance program. Depression is isolating; he would not have felt able to ask his boss for assistance when he needed money. He made a bad choice.”
Some respondents highlighted Chris’ financial situation as a factor worth considering in sentencing. Poverty and the resulting difficulty in supporting his child, or addressing his mental illness, were likely factors which influenced Chris’ decision to steal.
Other respondents reflected on the effect a sentence would have on Chris including the risk of reoffending. These respondents frequently questioned whether adequate supports would be present in Chris’ life (e.g. mental health support, financial support), and whether any sentence would be rehabilitative in nature.
A common theme among many responses was a recognition that complex factors should be considered when sentencing. Respondents felt that the multiple elements of Chris’ situation (e.g., mental illness, poverty, single fatherhood) must all be considered together.
“'Most important cannot be quantified because of the overlapping considerations. Mental health cannot be separated from presence of poverty in Chris' life due to the fact that the precariousness of poverty (as well as his precarious work) can amplify his mental health issues, making them worse (which, in turn, can affect job performance and ability, etc.). If Chris is Indigenous, mental health and poverty cannot be separated from the effect of colonization on pushing Indigenous people into poverty and causing damage to mental health.”
Other factors raised by respondents included:
- whether Chris had a criminal record;
- Chris’ motive for committing the offence (e.g., desperation to care for his child);
- the nature of the offence (e.g., non-violent, relatively small amount of money, breach of trust); and
- the employer’s (i.e., the victim’s) wishes, including support for alternative measures.
Some respondents advocated for particular sentences. Most argued that Chris should be supported with rehabilitative options (e.g., mental health support, financial support) and that any sentence should attempt to address the root causes of the offence. For a minority of respondents, the fact that Chris had stolen was enough to merit a punitive sentence.
A majority of respondents said Chris should not have a criminal record for this offence acknowledging the serious consequences of a criminal record. Several justifications were offered. The most frequent was that a criminal record would be counterproductive for both Chris and society, as it would make his life more difficult and increase his chances of reoffending. Many respondents cited the difficulties that people with criminal records experience in trying to secure employment, as a criminal record disqualifies them from many jobs. Many others noted that since Chris is a single father, a criminal record would indirectly harm his child by limiting Chris’ employment opportunities and engagement in his child’s life (e.g., being unable to volunteer at his child’s school).
Another oft-cited justification for Chris not receiving a criminal record was that the nature of the offence (e.g., minor, non-violent) did not warrant the negative consequences of a criminal record. Others felt that a first-time offence should not incur a criminal record.
In many instances, respondents advocated not imposing a criminal record based on the idea that a record does not address the root causes of crime (e.g., mental illness, substance abuse, poverty). To address the root causes of crime, respondents suggested supports in the areas of mental health (e.g., therapy, medication), income, housing, and employment,
“No. It is the system that is failing Chris, not him who is failing the system. Businesses are insured for this kind of theft. But individuals struggle every day to make ends meet off of minimum wage. That coupled with no job security because of his mental health issues and being a single parent can lead to this. There needs to be more support and community-based programs where he can reach out for help.”
While most respondents were against the imposition of a criminal record, a small group said a criminal record is warranted because theft is wrong, Chris violated the trust of his employer by stealing, and should deal with the consequences (e.g., criminal record). Respondents spoke about the deterrence effect of a criminal record and maintained that any future employers should be advised that Chris once stole in the workplace.
“I think he should still have a criminal record for his offence - although he feels he had no other choice, the fact is what he did was wrong, and he should have looked for other options.”
A few people felt that while a criminal record was warranted, it should somehow be a less severe kind – for example, expire after a set period of time if no further offences are committed. Others indicated that a criminal record should not limit Chris’ employment opportunities or ability to volunteer at his child’s school.
Participants were interested in how Chris could be held accountable for theft (breach of trust) from his employer in a way that acknowledged the seriousness of his offence but also Chris’ circumstances.
“Chris committed a crime, and there should be a way to recognize that, but only in a way that would be taken into account if ever being charged with future crimes and not one that would affect his ability to get a job nor in a way that would affect his relationship with his son.”
Alternative processes to trial and conviction
A large majority (83%) of Choicebook respondents said an alternative process to a criminal conviction should be used to resolve Chris’ offence, if both he and his employer agree to it.
Where Choicebook respondents said they would not be in favour of pursuing solutions outside the mainstream criminal justice system, was mostly in regard to violent offences (e.g., murder, sexual assault, robbery, domestic violence). Many respondents felt that violent offenders pose a significant risk to victims and society, and because of this, require traditional sentencing and incarceration. Others said victims may experience further trauma from having to face offenders in a restorative justice setting. Some respondents noted restorative justice can have a profound, positive impact on both victims and offenders, and should be part of the mainstream justice system, even in cases of violent crime.
“Cases of battery where they are not a result of self-defence should never be considered for alternate solutions. There may be possible exceptions, but as a victim of sexual violence, I do not believe these people deserve alternatives and should be charged for their crimes.”
Similarly, many respondents felt that certain violent offences, like human trafficking, or other serious but non-violent crimes, such as drug trafficking, large-scale fraud, and theft over $5,000, should not qualify for alternatives to the traditional system. Many respondents clarified that they would be in favour of pursuing alternative measures for minor offences, like petty theft and property crimes.
Many Choicebook respondents said individuals with an extensive record of criminal behaviour have “had their chance” and are unlikely to change, so alternative measures should be reserved for first-time offenders. A number of people specified that an individual’s risk of recidivism should be evaluated when considering an offender for alternative measures.
“Restorative justice can work with a first-time offender. I have had experience where, during the process, it was discovered that the perpetrator was on his third round through restorative justice. This shows it is not a deterrent to future actions by the criminal. There should be one chance only for this option.”
Several respondents said they would be open to pursuing alternative measures to the criminal justice system in all circumstances, as long as both the victim and offender fully agree to participate. Overall participants said alternative measures can have a positive impact if both the victim and offender are willing to participate and are both fully informed about the process. Some respondents raised concern that a power imbalance between a victim and offender could result in a victim being “pressured into” restorative justice (by an offender or the justice system).
“If the victim is in favour of an alternative process at some point during the case (even after the offender has been incarcerated) then, yes. It is all about the victim. In cases of sexual assault where the victim does not want to press charges, it is a great alternative. It is always crucial for those alternatives to be performed in a victim-centered way which means they don't worsen power dynamics.”
Other respondents said they would be in favour of pursuing alternative measures:
- on a case-by-case basis;
- in most or all circumstances;
- as long as victim impact is sensitively considered;
- when offenders are remorseful; or
- if appropriate mental health, addiction, and/or counselling services are provided to both offenders and victims.
Finally, some respondents said they would not be in favour of pursuing alternative measures:
- for offences against children, the elderly, or other vulnerable populations;
- when an offender is a threat to society;
- if the crime was committed with malice, intention, and/or the offender knew right from wrong; or
- in most or all circumstances.
Overall, participants at in-person roundtables were supportive of restorative justice as an alternative to traditional court and sentencing processes. They explained that restorative options are more beneficial than traditional incarceration for both offenders and victims, as they give both parties the opportunity to heal while significantly reducing the risk of reoffending. They also proposed that this model be more broadly available in communities across Canada, rather than only in certain regions.
While a majority of in-person roundtable participants said that restorative justice is most appropriate for low-level offences, others said it could be useful in more serious cases (i.e., violent crime), as long as victims are fully informed and consent. Some participants said more restorative and rehabilitative programs should be available for the families in domestic violence cases. Healing lodges were cited as a good option for many types of offenders, as long as the criminal justice system does not “co-opt” traditional Indigenous traditions that were originally intended to be community-based. A few people said restorative justice programs should be enshrined in the Canadian Victims Bill of Rights and that more should be done to educate the public on the effectiveness of restorative options in order to increase acceptance and reduce misconceptions.
There was more resistance to the use of restorative justice in certain cases (e.g., sexual assault) on online platforms like Twitter and Reddit compared to the feedback from the Choicebook and in-person events. However, many participants on social media voiced support for restorative programs for low-level offenders and for Indigenous offenders (e.g., based in Indigenous communities and run by Elders or separate Indigenous courts). Some people noted that an increased use of restorative justice could reduce recidivism rates, alleviate court backlogs, and be more cost-effective (i.e., saving on incarceration costs). Others called for more funding for restorative justice programs across the country and comprehensive law enforcement education/training on restorative justice processes.
“[There] has to be a STRONG commitment from the government and the necessary dollars in order to make [restorative justice] work. This has to happen in ALL communities in Canada – not just the big cities. In some ways RJ works better in smaller communities where ties to family and community are stronger. But… the facilitators have to be well trained, committed, and connected to other supports. And it has to be their job! The time for volunteer facilitators is over – most are suffering or have suffered burnout… let’s get serious about this finally.”
5.9. Court delays
- Fast track some cases through the system; deal with minor offences in alternative ways.
- Increase the use of restorative justice programs and specialized courts.
- Increase funding for all aspects of the criminal justice system, including judges, prosecutors, police, technology, legal aid, and prevention programs.
- Restrict intentional or strategic court delays by the Crown/prosecution.
- Reverse time restrictions on court delays or only apply in certain circumstances.
Choicebook respondents were provided with a scenario about Jeff, an individual charged with aggravated assault. After 20 months, his case was stayed, meaning charges would proceed no further, because of the Supreme Court of Canada’s Jordan decision, which requires that trials be completed within a reasonable time frame. Craig, the victim, suffered minor injuries because of the incident, missed three weeks of work without pay, and continues to suffer with insomnia and the emotional impact of the assault. He does not feel justice was done, and the media report that the justice system is “letting criminals go free.”
A video on court delays features Mr. and Mrs. Swan, a couple whose son was murdered. They describe their frustrating, seven-and-a-half-year long experience with the justice system as the court cases against those accused of killing their son were repeatedly delayed.
After being given more information about the Supreme Court of Canada Jordan decision and the factors that contribute to delays in the criminal justice system, over three-quarters (78%) of Choicebook respondents said other options should have been available to prevent a situation where charges are stayed (withdrawn) due to an unreasonable delay.
About three-quarters (74%) of participants said they would like to see “fast-tracking some cases through courts while processing more minor offences in alternative ways”, to help prevent a situation where charges are stayed due to an unreasonable delay. About two-thirds (64%) suggested “alternatives to the courts to resolve the issue (e.g., mediation or other alternatives).” Just over half (52%) suggested “more judges to hear cases”, and a third (34%) suggested more funding for legal representation of accused”.
Other suggestions included diverting some cases away from the traditional court system, restorative justice programs, specialized courts focussing on areas like mental health, drugs, or administration of justice offences, community courts, mediation, arbitration, or other rehabilitative or community-based programs. Respondents suggested categorizing cases by seriousness of the offence and diverting less serious cases to alternative settings and prioritizing serious cases (e.g., violent or sexual crimes) to avoid a stay of proceedings due to the Jordan decision. Others suggested “fast-tracking” simple or administrative offences to make more time available for more serious or complex trials, or prioritizing cases approaching their court-imposed time limits.
“Fast tracking court proceedings for violent offences where sufficient evidence exists to do so. Prioritizing these over administrative, 'paperwork', and minor narcotics offences where there is no immediate plaintiff beyond the Crown, frees up resources.”
Respondents called for increased funding for the criminal justice system to reduce delays, which would go towards hiring more judges and Crown prosecutors. This could in turn allow police to handle increasingly complex cases more effectively, and would help extend the hours during which courts operate into evenings and weekends.
Many respondents advocated for either the complete elimination of the time limits on court delays imposed by the Supreme Court of Canada or their elimination for certain types of serious cases. Others said the time limits should be extended. Participants suggested legislative, judicial, and constitutional changes to change the current limits.
“augmenter le temps de délais pour les causes criminelles sérieuses, trafic de drogue, violences, voies de faits, meurtre, viol, agressions physiques, intimidation et harcèlement afin de soustraire des bénéfices.”
Other options suggested by respondents included:
- reducing intentional procedural delays caused by defence counsel;
- reducing unnecessary criminal charges (e.g., decriminalizing drug use and administration of justice offences) and eliminating mandatory minimum sentences;
- providing more support for victims (e.g., financial, therapeutic, general); and
- making the offender provide restitution to the victim.
Court delays were raised as a concern at all in-person roundtables. Suggestions on how to deal with delays were varied, and included:
- mental health courts as an alternative for accused persons with mental health issues ;
- using technology to increase efficiency; and
- eliminating mandatory minimum sentences.
There were also calls to increase funding for prevention measures for at-risk youth, legal aid for accused persons, hiring additional Crown attorneys and judges, and for the justice system generally, especially at the community and service-delivery level.
Participants on social media and on discussion forums regarding court delays, emphasized that court delays are a major concern. They called for the hiring of more judges and Crown attorneys, increased funding for police, and preventing defence and Crown counsel from causing unnecessary delays.
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