Nunatsiaq News
COMMENTARY: Around the Arctic February 22, 2018 - 9:30 am

Legal Ease, Feb. 22

Do we need jails?


Prison is such a standard part of the criminal justice system that it is seldom that anyone thinks about it. And yet the reasons we have jail sentences can be challenged.

Section 3.1 of the Corrections and Conditional Release Act, the law that governs federal prisons, reads: “The protection of society is the paramount consideration for the (Correctional Service of Canada) in the corrections process.”

This suggests that prisons are not, at least primarily, intended to rehabilitate or deter but, rather, to separate offenders from society.

Now that is not without value—someone in jail is not tearing up Cambridge Bay.

But if separation is the main goal for prisons, the prison population should be fairly small. There aren’t that many people who are so dangerous that they need to be kept segregated from society on a more or less permanent basis.

Other purposes proposed for prison are deterrence, rehabilitation and denunciation of crime. These purposes are at least arguably not well met.

Crime is not well deterred by the threat of prison. The certainty of being caught is a much more powerful deterrent than the punishment.

Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment. Before a crime people are often very emotional, and often drunk, and a rational cost-benefit analysis is just not going to happen.

That said, people do think about getting caught, and that suggests more police will reduce crime better than longer jail sentences.

With regard to rehabilitation, prisons, as we have them in Canada today, are only partially effective.

Some facilities, the healing centre in Rankin and Makigiarvik in Iqaluit are examples, do have solid programs and help heal some of the brokenness that leads to violence and crime. Replacing BCC with the Qikiqtani Correctional Healing Centre may also help.

But traditional punishment prisons can make rehabilitation less likely. Inmates do not learn life skills.

In fact, they learn more effective crime strategies from each other, and time spent in prison may desensitize many to the threat of future imprisonment.

That leaves denunciation as a final goal for prison. And denunciation is not a trivial purpose. Society as a whole is entitled to say to a criminal, “What you did was wrong and your actions need to be denounced and marked as wicked.”

Healing, repentance and forgiveness are important, but so is saying that some conduct is unacceptable. Prison is a good way to mark that.

So that leaves us with prison being useful for some people and some crimes only.

The federal government is reviewing the use of prison as punishment and may well use prison less as a punishment. That may well be a good approach.

Prison is necessary, but not for all cases at all times.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

Email this story to a friend... Print this page... Bookmark and Share Comment on this story...

(8) Comments:

#1. Posted by RCMP on February 23, 2018

Nice theory, James, but that’s not the reality of the policing system in Canada.

If the primary concern of the prison system was to protect Canadian residents by removing those considered a danger, then how do you account for the great importance the RCMP attached to the capture of the Cape Dorset man who had already voluntarily removed himself from everyone else last year?

The reality of the Canadian police & prison system is “I’m the boss. Do as I say and defer to me politely, or I will lock you up until you knuckle under. I will remove your ability to protect yourself and I will not protect you.” That’s the reality of prison.

#2. Posted by Soothsayer on February 23, 2018

This is a great piece, James. There are some interesting prison models around the world, especially in Scandinavia. The focus in these cases seems to be solidly on rehabilitation rather than punishment. It may be the way of the future. I hope so.

#3. Posted by Reader on February 23, 2018

James, you are forgetting the Uttaqivik Community Residential Centre (CRC) in Iqaluit. They are an open custody halfway house that is doing more to impact positive reintegration and healing than either of the facilities mentioned.

#4. Posted by James on February 23, 2018

#3 yes totally right!

#1, 2 I may have been too idealist. But I do think rehab is possible. There are bad police (and bad lawyers and bad everybody) but in general the RCMP are trying to do justice.  I think the tools they have may be imperfect but they have their hearts in the right place. Same as judges and lawyers and everyone else in the system. But social problems are not well served with jail. Anyway thanks for the insights.

#5. Posted by Don't Forget on February 23, 2018

Poster #1 is forgetting that the man in Cape Dorset had “allegedly fired shots with a high-powered rifle at boaters collecting carving stone” (CBC Article Aug 21, 2017) on August 14th, 6 weeks after he had “voluntarily removed himself from everyone”.

In that case, apprehending the man was very much paramount to the protection of society.

#6. Posted by Courts on February 23, 2018

James, presumably you attend Criminal Court regularly. My experience has been that offenders are often given an overly generous number of chances to avoid prison through CSOs, probation and discharges and the like, but ultimately end up being bars for breach of conditions or for being convicted for their 15th violent crime over the past 10 years. I am not sure how much more the system can stretch before people are locked up.

Although it is nice to think all people can reform and be good members of society, there are enough people that never change who simply need to be isolated from society. I feel the system gives enough resources and opportunities as it is, unfortunately we live in a society where people have a hard time accepting responsibility for their actions and taking initiative to change for the better.

#7. Posted by RUM, GUNPOWDER, AND THE LASH !!! on February 23, 2018

My name says it all.
We all respond to different circumstances!
I used to see skinny,underfed young men drafted for National Service
in the U.K.
When they came back they were strong hard men.

#8. Posted by James on February 23, 2018

#6 I agree on the violent crime end. Those crimes need to be denounced and jail does that. Breaches need to be addressed so that Court Orders are obeyed but I see them as very vase specific.  Telling an alcoholic they can’t drink, for example, is different from saying stay away from an assault victim. But you make fair points.

#7 you can learn a lot and grow a lot in the Forces.

Remember my personal information

Notify me of follow-up comments?