Justin Bourque's case prompts debate over lengthy prison terms

This past week, much of the country had its eyes on New Brunswick as it waited to learn how a Moncton judge would sentence the man whose senseless shooting spree in June 2014 left three RCMP officers dead, two others seriously wounded and a community deeply harmed.

While Court of Queen’s Bench Chief Justice David Smith’s decision has been the subject of much prediction and debate, the length of time that Justin Bourque would face in prison has never been at issue.

First-degree murder in Canada carries a mandatory life sentence and so Bourque was facing a life behind bars from the moment he plead guilty.

What Friday’s judgment determined — and what marks Bourque’s case as unprecedented — is the length of time he would have to serve before being eligible for parole.

Following a 2011 amendment to Canada’s Criminal Code, judges may now order that the 25-year period of parole ineligibility for murder convictions be served consecutively in cases of multiple murders.

This provision was first used in 2013 in the case of Travis Baumgartner, the former armoured car guard who shot four of his co-workers, killing three of them. He was sentenced to life imprisonment with a period of 40 years of parole ineligibility.

This past Friday, we learned Bourque’s period of parole ineligibility would be 75 years. In each case, the offenders’ life sentences are served concurrently. The “consecutive” portions of the sentences apply only to parole ineligibility periods.

This is an important distinction to make given that many sources are reporting that Bourque’s sentence is the “longest in Canadian history.” This is a mischaracterization of the sentence.

Bourque is now serving a life sentence — the same sentence that any other convicted murderer in Canada is also serving. He has not been sentenced to 75 years in prison nor does his sentence represent three consecutive life sentences (let alone five, as some headlines read).

Rather, he’s been sentenced, as the Criminal Code provides, to life. This is because, in the words of the judge who sentenced Baumgartner just over a year ago, “one only has one life.”

Bourque's sentence is not unique

In this respect, Bourque’s case is not unique for being the first decision under the new sentencing regime nor for its sentence of a life behind bars.

Even its horror or number of victims does not leave it unmatched in Canadian history given past cases, like Paul Bernardo, Robert Pickton or even New Brunswick’s Allan Legere.

Indeed, all of these offenders were sentenced to life and each faces an infinitesimal likelihood of ever seeing the outside of a prison wall again.

Yet, it is this infinitesimal likelihood that marks the difference between Bourque’s case and others like it, and serves to explain its importance to Canadian crime control policy.

The change to Canada’s sentencing laws which allows for consecutive periods of parole ineligibility is a result of Bill C-48, proposed in February, 2011 and made law nine months later.

In Parliamentary discussions of the bill, three purposes emerged:

• to “better reflect the tragedy of multiple murders by enabling a judge to acknowledge each and every life lost”
• to use parole ineligibility periods as instruments of denunciation and retribution; and
• to “enhance the protection of society by permitting judges to keep the most incorrigible multiple murderers in custody for longer periods of time.”

There are, of course, many questions to be asked about these objectives, including whether consecutive periods of parole ineligibility better address society’s protection than a Dangerous Offender designation — a declaration, for instance, that has made parole a practical impossibility for many of Canada’s worst serial killers, including Bernardo and Clifford Olson, the latter of which applied for (and was denied) parole on three occasions before his death.

Do longer sentences make for safer communities?

And while one might argue how relevant increased parole ineligibility periods are among inmates who are unlikely to ever be released given the danger they pose to the public, the more important question to ask about Bill C-48 is whether or not it works.

In other words, increasing punishment has been proven to have very little effect on the reduction of crime. Rather, in most cases, it increases it.- Karla O'Regan

Do punishments made in the name of denunciation and retribution serve to “enhance the protection of society?" Do longer periods of incarceration amount to less crime and safer communities?

The social science evidence on these questions is clear and unequivocal: not only do longer terms of imprisonment fail to see a reduction in crime, they have been proven to increase both the rate of recidivism and the severity of the offences that are committed by those who re-offend.

In other words, increasing punishment has been proven to have very little effect on the reduction of crime. Rather, in most cases, it increases it.

This is a hard pill to swallow, even among those of us who study and work within the fields of criminal justice and criminology. There is something about the notion of increasing punishment to decrease crime that just seems to “make sense.”

The difficulty is that this “common sense” of deterrence just doesn’t add up.

Take parole eligibility, for example, which studies have shown serves to decrease violent behaviour among prison inmates, particularly those serving lengthy sentences.

Further, the reduction of violent and anti-social behaviour within prison walls has been shown to reduce re-offending rates among those inmates who are released (particularly those who served lengthy sentences), meaning less crime overall.

Possible explanations for harsher punishments

In the face of such an overwhelming amount of evidence that harsher punishment is not only quite ineffective at reducing crime, but actually serves to increase it, there are really only two possible explanations for the continuing prevalence of and dedication to deterrence-based punishment schemes: either the federal government hasn’t seen the evidence (unlikely, at best, and incompetent, at worst) or it simply doesn’t care — a sentiment that might explain Prime Minister Stephen Harper’s suggestion that “now is not the time for sociology.”

This is the difficulty at the heart of deterrence-based policies: they aim to provide a simple solution to the complexities of (criminal) human behaviour.

They are thus particularly popular in political platforms that can take aim at society’s “crime problem” without having to rethink how it is understood, treated, and responded to systemically.

The danger, of course, is that rather than ameliorating Canada’s crime problem, such policies will serve to make it worse.

And if other jurisdictions that have implemented similar punishment regimes (such as California) are any indication, the situation is likely to get much worse.

Canada’s Youth Criminal Justice Act serves as a good example of the positive effects a departure from deterrence-based penal policy can have given that in the five years after it came into effect, its provisions emphasizing rehabilitation and non-carceral sentencing served to reduce Canada’s youth crime rate by 38 per cent.

In 2010 — one year before the federal government’s crime control changes came into effect — Canada’s crime rate was the lowest it had been since 1973.

It’s time to stop talking about Justin Bourque.

But the legal precedents his case establishes and the evidence it provides of a trend in Canada towards deterrence-based crime control policy is a conversation worth having, both for the effects such a trend will have on the safety of our communities and for the underlying values we want such communities to have.

Remarkably and courageously, in the wake of Friday’s sentence, the wives of the fallen officers cautioned against a slip into anger and hate, reminding us that such directions will not yield truth nor nobility.

Instead, our challenge is that which Assistant Commissioner Roger Brown, the Commanding Officer of the RCMP in New Brunswick suggested: working together to keep our communities safe. Let’s hope the Harper government was listening.