Resisting the Politics of Punishment: Political Culture and the Evolution of Canadian Criminal Justice Policy

Background: The Canadian jurisdiction has a long history of stable imprisonment rates, facilitated in part by policymakers and successive governments advocating for restraint on the use of incarceration and advancing a moderate and balanced approach to crime and its control more generally. However, between 2006-2015, the country saw a complete shift in thinking and action around crime control towards more punitive ends with the election of the new Conservative Party of Canada (CPC). Yet, despite a decade of tough on crime rhetoric and the passing of 42 criminal justice bills, the prison population did not rise appreciably and there has been no discernable change in public opinion. Moreover, throughout this era, the CPC was one voice among many and faced a significant amount of discursive and legal resistance. Today, crime control no longer occupies the political arena and, more optimistically, with the election of the Liberal Party of Canada in 2015 the country appears to have reverted back to its roots in penal moderation. This decade of CPC power, therefore, provides the ideal case study from which to explore what drives and affects penal change around the world and more specifically to highlight the necessary factors and conditions behind the varying 'success' of penal populism as a governing strategy.

Methods: This thesis relies predominately on a thematic analysis of discourse. The analysis proceeded in four separate, yet interconnected parts. Part one examines the 'official discourse' surrounding crime and its control prior to 2006. The data drawn upon comes from a sample of formal statements of criminal justice policy issued over the past century (N=47) and the political manifestos (N=52) and Throne Speeches (N=147) of the governing parties during this era. Part two explores the discourse surrounding crime and its control coming from the CPC between 2006-2015, comparing and contrasting it to that of the past. The data drawn upon in this analysis comes from a sample of Prime Ministerial speeches (N=60) and the government's political manifestos (N=4), Throne Speeches (N=7) and press releases (N=420). For contextual purposes, both of the above samples were complemented by a survey of key criminal justice reforms and legislation introduced and passed into law during these respective time periods, as well as some of the parliamentary debates surrounding these reforms. Part three examines the print-media's coverage and commentary of the criminal justice platform, policy pursuits and associated discourse of the CPC. The data utilized in this analysis comes from a sample of newspaper articles (N=863) spanning 2005-2015. Finally, part four explores court challenges to the CPC's 'law and order' legislation, with particular attention to the Supreme Court of Canada cases (N=10). Lower court challenges and other cases with subject matter outside of the 'law and order' category were included for contextual purposes.

Findings: The data indicates that during the era of the CPC, thinking and action around crime and its control changed dramatically. Specifically, prior to 2006 crime was predominately seen as the product of wider social forces and offenders themselves as in need of assistance. Subsequently, the key aim of criminal justice was that of reintegration, facilitated through restraint on imprisonment and the advancement of rehabilitative ideals, and an ethos of balance and moderation guided policy-making. By contrast, the CPC understood crime as a rational choice and saw offenders as simply 'bad' people, inherently different than the law-abiding. Flowing from this was a criminal justice response that prioritized punishment and exclusion and had little faith in the ability of individuals to change. Naturally then the prison was elevated as the primary means through which to deal with crime and rehabilitative ideals were entirely absent during this era. Within the news media coverage 'experts' and practitioners were elevated in the status hierarchy of discourses, especially relative to the public and victims. Furthermore, the news-media's response to these changes occurring in the criminal justice arena was overwhelmingly negative. Specifically, the CPC was portrayed as being driven by political cynicism and a blind commitment to conservative ideology. Furthermore, the policies themselves were framed as being overtly punitive, expensive, irrational, and, above all, 'Americanized'. Alternative ameliorative solutions advanced in the news-media prioritized notions of reintegration, restraint, rehabilitation and balance which were understood to be inherently tied to Canadian identity and past traditions. Finally, the judicial analysis indicated that the courts struck down a number of the governments' core pieces of criminal justice legislation. In legal terms, the judgments provided indicated that the courts deemed a number of these policies to be excessive in nature and therefore offensive to the principle of proportionality (balance). In realist terms, the judgments highlighted the courts preferences for, and commitments to, the penal values of restraint on the use of imprisonment, rehabilitation, and reintegration specifically and to balance and moderation more generally.

Conclusion: The media's coverage of the CPC's discourse and policies during this decade served as a key site of resistance. Specifically, the presence of a counter discourse meant that consumers were presented with an alternative perspective from which they could form opinions and perceptions surrounding issues of crime and punishment. Perhaps the more interesting story told by the data is the surprising absence of support for tough on crime policies in the news-media. Subsequently, a key component of the populist equation was missing. The Supreme Court of Canada's command of the legal arena, and control of political authority more generally, crippled some of the CPC's most potent criminal justice policies. The implications of this cannot be understated. The government's loss record indicates that the court served as a powerful political opposition to the CPC and ultimately served as a significant roadblock to the government's policy agenda. Taken together, both the shift towards a more punitive trajectory and the resistance to these changes must be understood as the product of wider 'political projects'. The new CPC which emerged in 2005 represented a completely different 'breed' of conservatism than Canada had ever seen and subsequently clashed with traditional 'ways of doing politics' and more specifically with deeply ingrained and long-standing commitments to centrism and small-l-liberalism in Canadian political culture. By extension, CPC's thinking and action around crime was confronted by key actors and institutions as culturally inappropriate and ultimately incompatible with reigning sensibilities.