Soon after Doug Ford was sworn in as Ontario’s premier, I got a semi-hysterical email. An acquaintance – active in the anti-incarceration and prisoner rights movement – was convinced that Ford’s inauguration would lead to the imposition of “American mass incarceration” in Ontario. He asked for my political on how to combat the impending disaster.
I told him to chill.
My response fell short of “Don't Worry, Be Happy”; in the policy areas of criminal justice and incarceration, nothing much would change under a Ford administration – for better or for worse. The problems of today would be the problems of tomorrow.
Let me be clear on two things about my semi-mellow prognosis.
First, if a Ford government did lead to “American-style mass incarceration” it would be a bad thing. Canada and the United States have (with the exception of homicides using handguns) roughly equivalent crime rates – but the United States has, on a per capita basis, about eight times as many people locked up in jails and prisons. American incarceration is racialized, class-ridden and societally destructive. It is such a pathologically bad situation that even Donald Trump recognized the need for change.
Second, provincial governments in Canada can significantly influence incarceration rates.
Under our constitution, the federal government passes criminal law and provincial governments administration it. Provinces determine prosecutorial policies and the administer the courts. Provincial court judges – who handle the vast majority of criminal cases – are appointed by provincial governments.
Provincial governments have more influence on incarceration rates than does the federal government. From 2006 to 2015, the Harper governments passed all manner of “tough-on-crime” legislation specifically designed to throw more people in jail for longer periods of time. Despite this, Canada’s incarceration rate was the same when Harper left office as it was when he was sworn in. This stability masked interprovincial variation. The Incarceration rate in Manitoba almost doubled during this period – while declining in Ontario and British Columbia. These different results are directly related to different policy directions issued to prosecutors. For example, when considering bail applications, prosecutors in Ontario were told to balance a number of factors, including “the liberty interests of the accused”, the presumption of innocence and fairness to the accused. In Manitoba, by contrast, in 2009 the government ordered prosecutors to always oppose bail for a wide range of offences and to ensure ““the safety of the public should be the paramount consideration in all cases.” Manitoba has a remand incarceration rate three times that of Ontario.
After the Harper government passed the Safe Streets and Communities Act, which imposed or increased mandatory minimum sentences for a range of offences, the charging decisions of prosecutors became a vital decision determining the length of sentences. Charges could be structured in a way that triggered the mandatory minimums – or to avoid them. Prosecutors in Manitoba were told:
In establishing mandatory minimum jail sentences, Parliament clearly intended that offenders who commit those offences were to be incarcerated for at least the minimum amount of time provided in the Criminal Code…. it would be inappropriate to take steps to avoid the imposition of a mandatory sentence of imprisonment.
Meanwhile, in Nova Scotia, prosecutors were told:
It may be appropriate in exceptional cases to pursue a charge which is not the most serious which could be supported by the evidence when it is apparent from the outset that the expected length of trial or the usual penalty for a particular type of charge is out of proportion to the gravity of the alleged criminal conduct. In order to maintain public confidence in the administration of justice, prosecutors who withdraw or otherwise discontinue prosecution of a charge with a mandatory minimum penalty when the circumstances apparently support such a charge should be able to provide to the court and to the public a reasonable explanation for their course of action.
In contrast to Manitoba, Nova Scotia prosecutors were given permission to make charging decisions that would work around the new mandatory minimum sentences, subject to a caution about being able to articulate a plausible explanation. Three guesses as to which province saw more mandatory minimums imposed. The first two don’t count.
Why wasn’t I worried about the Ford administration filling prisons?
When I told my acquaintance to chill out – that the Ford administration was not going to dramatically increase incarceration rates in Ontario – I believed that:
If Ford threw a lot more people into jail for a longer period of time, it would be bad; and
A provincial government had the powers to increase the use of incarceration.
So why wasn’t I particularly worried about the Ford government’s approach to criminal justice?
The short version is that there was no indication that the incoming Ford government wanted to become more punitive. From where I sat in Alberta, it seemed that:
Ford himself seemed pretty libertarian. He was criticizing the provincial liberals for not speeding the process of opening up stores selling cannabis. He was promising cheap beer. These kinds of preoccupations don’t usually indicate a really hard law-and-order, don’t spit on the sidewalk approach to public policy.
The 2018 Conservative platform was almost silent on the issue of crime. It was the last issue discussed in the platform and seemed like an afterthought. Calling it vague would be to assign a specificity that it did not have. If the Ford Conservatives intended to build a bunch of new jails and fill them up, they were keeping it a secret. Ford obviously saw no political benefit to making a bunch of tough-on-crime promises.
The core of the 2018 Conservative platform was a promise to cut government spending. This is contradictory to throwing more people in jail. Keeping people locked up costs’ money ($264 per inmate per day in Ontario in 2018). Fiscal conservativism sometimes trumps any desire to lock up criminals. In Britain, incarceration rates went down when Margaret Thatcher was Prime Minister (and up when Tony Blair’s Labour government took power). Alberta incarceration rates went down significantly when Ralph Klein was Premier.
Hence, my mellow advice. Doug Ford and his Conservatives didn’t seem that interested in throwing more people into prison – and were probably too cheap to spend the money this would require.
How was my crystal ball?
My acquaintance was not impressed with my predictions about the Ford government. I never heard back from him. When the start of the current Ontario election campaign started me thinking about politics in the centre of the universe, I recalled the exchange and wondered how I’d done.
I decided to look at the numbers. Results reveal more truths than political rhetoric and media spin.
According to Statistics Canada, during the last full year before Ford’s Conservatives took power (2017/18), an average of 7,473.7 people were locked up in Ontario’s jails every day. In 2020/21, this was down to 6,405.2 inmates per day – a drop of 1,068.5 or 14.3 percent. At first glance, there’s no evidence to suggest that the Ford government was working hard to throw more folks into jail; if they were, incompetence exceeded malice.
Let’s drill a bit deeper into the numbers.
While incarceration rates were dropping in Ontario, they were dropping a bit faster in Canada as a whole. During the same period, the number of people locked up in all provincial jails declined by 23.2 percent. If we account for population changes, the incarceration rate in Ontario dropped from 65.91 inmates per 100,000 adults to 53.51 – a drop of 18.8 percent. During the same period, Canada’s incarceration rate dropped from 83.99 inmates to 100,000 adults to 61.6 – a drop of 26.6 percent. There were significant declines both in Ontario and in Canada as a whole. The incarceration rate in Canada dropped more, but started from a higher level. Let’s be clear. Some people should be in jail. If Ontario was unnecessarily jailing fewer people prior to Ford’s inauguration, the scope for reduction during his term in office was smaller.
In both Ontario and Canada as a whole, the decline in the incarceration rate occurred during a period of stable crime rates. Statistics Canada produces a Crime Severity Index (CSI) that provides a single number measuring the per capita volume of crime adjusted for the severity of the crimes. In 2017 (the last full year before Doug Ford became premier), Ontario’s CSI score was 56.35 – compared to 74.6 for Canada as a whole. By 2020 – the last year for which data is available, Ontario’s CSI was 55.66, compared to 73.44 for all of Canada.
Perceptions of Justice Across the Political Spectrum
The impact of the Ford government’s criminal justice policies can be summed as …. a big yawn. In 2018, the Ontario Conservatives made no real promises on criminal justice. That’s what they delivered. Nothing, for either good or ill. Their record is indistinguishable from their Liberal predecessors.
Which raises the question:
Why was my acquaintance absolutely convinced that the Ford government would throw a lot more people into jail?
The Ford Conservatives were seen as “right-wing”. In our political discourse, there is an assumption that right-wing governments are “tough-on-crime” – that is, tough on criminals. Right wingers are seen as the “lock-em up, throw away the key” crowd. Left wingers are seen as the bleeding hearts who want to hire social workers rather than police officers or jail guards.
Like most stereotypes, this perceived political symmetry is nonsense. I’ve already mentioned that incarceration rates went down in Britain and Alberta during the rule of Margaret Thatcher and Ralph Klein. In the United States, the two pieces of federal legislation that did the most to increase incarceration were passed when Lyndon Johnson and Bill Clinton were Presidents – and when the Democrats controlled both the Senate and House of Representatives. Donald Trump was the first president in six decades to sign legislation that had the stated goal of sending fewer people to prison.
In Canada during the 21st century, the governments that were the “toughest-on-crime” were the Doer/Sellinger NDP governments in Manitoba. During their time in office from 1999 to 2016, Manitoba’s incarceration rate increased by 87 percent compared with 10 percent for Canada as a whole. By the end of the NDP’s reign, Manitoba’s incarceration rates were more than double those in Conservative Alberta, even though Manitoba’s CSI was only 11 percent higher.
The reality is that there is no necessary correction between the “wingedness” of a government and its policies on criminal justice. Some left-wing governments like to throw a lot of people into jail; some right-wing governments don’t. But the perception has consequences. Governments led by the likes of Doug Ford can get away with doing nothing while still being perceived as “tough” while the governments led by Gary Doer and Greg Sellinger frantically implemented policies designed to throw more people into jail (primarily young indigenous males) in a futile attempt to avoid being labelled as soft-on-crime.
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