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April 20, 2004 - The Ottawa Citizen (CN ON)

Delusions On All Sides

By Dan Gardner, Citizen senior writer

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The political left, right and centre all have an unjustified belief that criminal law can fix social ills.

I've interviewed Irwin Cotler -- lawyer, human-rights activist, now justice minister -- and I know him to be an intelligent and thoughtful person. But nonsense is nonsense, and last week the minister spoke nonsense.

There's no need for stronger hate crime laws, Mr. Cotler told reporters, because the Criminal Code already directs judges to make sentences tougher if a crime is motivated by hate.

That provision effectively prevents crimes, Mr. Cotler added. "It is not only those that have been apprehended, it is also those that have been deterred from the commission of these crimes because these laws are on the books."

To believe this, one must be able to imagine a semi-literate, drunk 19-year-old stroking his chin as he rationally calculates that the sentence enhancement prescribed under the Criminal Code section 718.2(a)(i) tips the balance of utility against lashing out in blind hate.

It would be a pleasant world if criminals were so thoughtful, but sadly, they're not. Criminologists have produced a small mountain of research showing that although the perceived likelihood of getting caught does deter crime, tougher punishments do not.

Reality aside, if the minister feels that tougher punishment deters hate crimes, surely he should propose tougher sentences for other crimes so they may also be deterred. And if tougher hate crime sentences deter hate crimes, why not toughen them further to deter better? That's the relentless logic of punishment, a cancer that will spread if untreated.

California was one of the most liberal jurisdictions in North America when it was stricken with the disease just a little more than two decades ago -- it is now a place where petty thieves get 25-to-life, prisoners are driven mad in supermaxes and death row overflows.

It might seem strange to suggest that a Liberal justice minister shares something of the mentality that produced the American gulag and, perhaps worse, the TV show COPS. After all, a fetish for punishment is one of the defining features of the political right.

Drug abuse, prostitution, homelessness, community decay, gangs, guns: There's a long list of social ills conservatives think can be cured with a stiff dose of punishment. And it is the political left that calls the right crude and foolish for thinking so.

But Mr. Cotler's comment is a demonstration that one need not be a conservative to be deluded about the ability of the criminal law to cure social ills. In fact, the only distinction between the delusions of the left and right is the list of ills each would prefer to treat with punishment.

The left routinely demands deterrence and a pound of flesh for white-collar crime and other corporate malfeasance. And it was the left that brought us hate-speech laws three decades ago in the belief that punishment would put a halt to bigotry at mere words. A decade later, the concept of "hate crime" was invented because, evidently, bigots didn't stop at words.

It's more than a little strange that many of the same people who consider it barbaric to bring the mailed fist of the criminal law down on social ills such as drug abuse passionately insist that the mailed fist of the criminal law be brought down on social ills such as racism.

The essential problem -- on the right, left, and most points in between -- is a wholly unjustified faith in the curative powers of the criminal law. Governments have at their disposal a vast array of sticks and carrots, including scores of regulatory mechanisms that discourage or restrict, but none of these is ever good enough.

No, if we are personally passionate about changing some behaviour or other, nothing less than criminalization will do. The issue may be complex. Experts may tell us the most effective tool for dealing with it is a precise regulatory scalpel. No matter. We demand the government swing the criminal-law sledgehammer.

Fear of violence in schools led to "zero tolerance" and fist fights being punished with criminal charges -- skipping over the many constructive alternatives available. Also typical is the crusade of Mothers Against Drunk Driving to lower the cut-off for criminal drunk driving to a blood-alcohol content of .05 per cent.

There's no evidence that criminalization will accomplish anything that administrative means, such as roadside licence suspension, do not. But still nothing less than criminalization will do.

The extent of our embrace of punishment isn't often recognized because it's often expressed outside the Criminal Code. Recent reproductive-technologies legislation, for example, makes it a crime to sell sperm for profit, with violations punishable by up to 10 years in prison. Parliament constantly churns out sledgehammer laws such as this. The shelves of law libraries are overflowing with them.

Sociologists struggle to understand this mad proliferation, but I can't help thinking it owes much to the simplicity of criminal law. Issues such as racism, troubled youth and corporate governance are enormously complex and nuanced. Looking for the best policy fit requires us first to understand them. We have to grapple with detail and see the shades of grey. We may also have to face troubling questions that poke and prod our comfortable assumptions.

But the criminal law promises to do away with all this. We merely have to identify the behaviour we don't like and ban it. No need to dig into the issues, understand perspectives that are not our own and question what we think we know. We simply have to forbid and punish and be done with it.

This is surely one reason why we have such deep faith in the criminal law: We think it works because we want it to work.

Sadly, reality is not made of wishes. The criminal law very often fails to be the silver bullet we hope for. And just as often it produces socially harmful side-effects instead -- arresting troubled students, for example, only serves to alienate them further from schools and communities which leads to more anti-social behaviour and crime.

This is why experts routinely urge the criminal law be used sparingly. "No conduct should be defined as criminal unless it represents a serious threat to society, and unless the act cannot be dealt with through other social or legal means," advised a parliamentary report way back in 1969.

A Justice department report said the same more than a decade later. So did the Law Reform Commission. Forbidding and punishing must be a last resort.

Clearly, this sage advice is not being followed. "As a society, we often turn to the criminal law as our first response to unwanted behaviour," noted a 2003 discussion paper of the Law Commission of Canada.

That paper, entitled "What is a Crime?", is a superb effort to get people to think about what the criminal law is, why we use it, and whether we use it too much. That may sound a little dry, but the paper is not. It can be found at

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