Lisa Kerr is an associate professor at Queen’s University’s faculty of law.
Recently, Conservative Party Leader Pierre Poilievre released a YouTube video entitled “Everything feels broken,” in which he sits on a picturesque Vancouver beach with a tent city in the background. With a good degree of compassion, he describes the opioid dependency that he says fills these tents. But he offers an incongruous solution: tough punishment for “violent reoffenders.” He also attacks the safe-supply experiments of progressive governments. The better solution, he says, is one that the criminal-justice system already pursues: punish those involved in selling the toxic drug supply.
It is a fitting moment to reflect on the sentencing-policy legacy of former prime minister Stephen Harper, at a time when Mr. Poilievre promises to take us back to that era. It is clear from what he says in his YouTube video that Mr. Poilievre would like to copy the Harper playbook, mobilizing voters with the standard moves of penal populism by activating our fears and promising peace through punishment. The truth is that our sentencing courts are already free to punish “violent reoffenders” harshly – and they do so every day.
The timing of his beach video is striking, as it comes on the heels of the Supreme Court of Canada disposing of the final remnants of the Harper-era sentencing legacy. On Oct. 28, 2022, in R v. Ndhlovu, provisions from the 2010 Protecting Victims From Sex Offenders Act were struck down. These laws required mandatory registration for those found guilty of any one of 27 different sexual offences, across a spectrum of seriousness. In the case of a person with a prior conviction, even one stemming from the same event, the mandatory registration was for life.
The laws in the Protecting Victims Act prohibited judges from considering anything beyond the facts of a specific case when meting out a sentence. In the case of Eugene Ndhlovu, he had been convicted of two counts of sexual assault against two complainants arising from a party in 2011. He was 19 at the time, he pleaded guilty, and the judge had “absolutely no concerns” that he would reoffend. The Supreme Court concluded that the “constitutional defect” of the act’s provisions was that they used “categorical and unyielding proxies” that cast too wide a net. Of course, judges are still free to impose sex-offender registration in appropriate cases. But they can now also attempt to do justice for the offenders before them as well by considering whether a perpetrator resembles the sex offender of our worst fantasies, or the impulsive, often intoxicated, misconduct of a young person who can be reformed. The latter figure should be punished, but they do not merit lifelong surveillance and penal control.
The list of other Harper-era reforms that have been declared unlawful is shockingly long: the sentence of life without the possibility of parole for multiple murders, struck down in R v. Bissonnette in 2022; the mandatory victim surcharge, struck down in R v. Boudreault in 2018; the mandatory minimum for drug trafficking, struck down in R v. Lloyd in 2016. For each of these cases, which all made their way to the Supreme Court, hundreds of lower-court cases had to come first. The public cost of these many years of litigation is mind-bending. All the legal-aid fees, the government lawyer salaries, the judicial resources. And none of the policies remain.
The outlier case was R v. Sharma, for which the Supreme Court released a majority ruling in November that upheld Harper-era legislative limits on the judicial ability to impose conditional sentences. Cheyenne Sharma had carried drugs into Canada at a time of economic desperation. It was her first offence. She was 20, a single mother and granddaughter of a residential-school survivor. She had turned her life around since. Yet, she was ineligible for a penalty that would have allowed her to remain in her Indigenous community, caring for her child, because she had been convicted of an offence that can also be committed by sophisticated, organized criminals for substantial profits. The Sharma decision is impossible to square with Ndhlovu, handed down just a week earlier, where the court was concerned with having to use rough proxies instead of dispensing individualized justice.
But days later, the provision upheld by the 5-4 decision in Sharma was taken off the books. On Nov. 17, the Liberals brought in Bill C-5, which removes 20 mandatory minimums – including every mandatory minimum for drug crimes that the Harper government had introduced. The bill also restored judicial discretion to impose a conditional sentence in cases where an offender is a suitable candidate for provincial jail time. Ms. Sharma could be sent home, where she belongs, under this new law.
At the core of Mr. Harper’s sentencing policies was a political narrative that criminal-justice experts cannot be trusted. The laws stripped discretion from those working on the front lines in our courthouses and penitentiaries. They took decision-making authority away from prosecutors, judges, prison officials and the National Parole Board. The implication was that only politicians in Ottawa had a good sense of what people deserved, and how criminal law should be administered.
Whatever else the Harper government may have achieved, its sentencing policies were a mess that cost Canadians dearly. One hopes that Mr. Poilievre will change his mind about offering us a sequel.