How the Canadian sentencing system impacts policy reform: An examination of the Harper era

• Published date: 01 April 2021
• Author: Kate Puddister
• Date: 01 April 2021
• DOI: http://doi.org/10.1111/lapo.12163

ORIGINAL ARTICLE

How the Canadian sentencing system impacts policy

reform: An examination of the Harper era

Kate Puddister

Department of Political Science, University of

Guelph, Guelph, Ontario, Canada

Correspondence

Kate Puddister, Department of Political

Science, University of Guelph, 50 Stone

Road E, Guelph, ON N1G 2W1, Canada.

Email: kpuddist@uoguelph.ca

Abstract

During the Harper era (2006–2015), the Canadian

government actively pursued criminal justice policy

reform. Many of its efforts focused on reforming the

Canadian sentencing regime by increasing the severity of

penalties, including expanding mandatory minimums.

Yet, Canada’s rate of incarceration remains stable. The

inconsistency between the considerable focus on sentenc-

ing policy by the Harper government and the lack of sig-

nificant change in incarceration rates merits further

scrutiny. This contrast between policy effort and policy

impact also presents an opportunity to examine how the

context of criminal justice policy in Canada influences the

nature of policy reform. Taking up this focus, this article

articulates the context of Canadian criminal justice policy

and considers how this context shapes the policymaking

process and policy reform.

1|INTRODUCTION

When the public assesses the performance of the criminal justice system, the length and severity

of sentences for offenders are front of mind (Roberts et al., 2007; Steiger, 1998). The public rou-

tinely evaluates sentences imposed by judges as reported by the media and considers whether

the severity of the sanction is just. Sentences that are perceived to be too lenient will draw criti-

cism and will lead to calls for more punitive sentencing and less judicial discretion. Therefore, it

is not surprising that governments motivated by a desire to appear tough on crime will focus

their attention on sentencing policy (Beckett et al., 2018). In Canada, this certainly was the case

for the recent Conservative government, led by Prime Minister Stephen Harper, which held

power from 2006 to 2015. The Harper government devoted a substantial portion of its legisla-

tive efforts to criminal justice policy in general and sentencing policy in particular. Many of the

measures adopted by the Harper government drew criticism from different members of the

criminal justice policy community, as many were concerned that the focus on severity in sen-

tencing would increase the rate of incarceration and increase spending on criminal justice.

DOI: 10.1111/lapo.12163

©2021 University of Denver/Colorado Seminary and Wiley Periodicals LLC.

Law & Policy. 2021;43:149–169. wileyonlinelibrary.com/journal/lapo 149

However, an examination of the available evidence demonstrates that these concerns have not

materialized as predicted. In particular, Canada’s notoriously stable rate of incarceration has

endured.

The inconsistency between the considerable focus on sentencing policy by the Harper gov-

ernment and the lack of significant change in incarceration rates merits further scrutiny. This

contrast of policy effort and policy impact also presents an opportunity to examine how the

context of criminal justice policy in Canada influences the nature of policy reform. Taking up

this focus, this article articulates the context of Canadian criminal justice policy and considers

how this context shapes the policymaking process and how it impacts policy change. While

there have been some insightful analyses of the stability of the rate of incarceration in Canada

(e.g., Doob & Webster, 2006; Tonry, 2007), this issue has not been examined through a policy

framework, and the political–institutional factors remain undertheorized and underinvestigated.

Canadian sentencing policy is a compelling case for analysis because, unlike most other com-

mon law jurisdictions, the Canadian sentencing framework lacks the structure of a sentencing

council or commission and is primarily constituted by judicial decision-making and piecemeal

legislative change by Parliament.

Through an analysis that is guided by an understanding of institutions, judicial review, and

public policy, this article identifies and examines how the characteristics of structure, agency,

and ideas shape the context of Canadian criminal justice policy to create a loosely coupled sys-

tem that is often resistant to change. The policy context framework is then applied to an empiri-

cal case study of the Harper government’s sentencing policy. This article finds that the

institutional features of the Canadian criminal justice system have largely limited the impact of

the changes to sentencing policy, despite the Harper government’s sustained and considerable

focus.

This article makes two substantive contributions. First, it provides an analysis of the context

of Canadian criminal justice policy by examining structural factors such as the constitutional

division of powers, judicial review, and justice system fragmentation. The policy context is fur-

ther detailed by assessing how discretion, actors, and guiding principles of the system impact

the manner in which policy is implemented, and how these factors combine in a manner that

can undermine and circumscribe efforts at policy change. This analysis demonstrates that Cana-

dian criminal justice policy bears many of the same organizational features present in the Amer-

ican context that inhibit reform. Importantly, criminal justice policy reform is often ineffective

or nonlinear because change depends on the cooperation of many different institutions and

actors with varying levels of discretion, creating potential gaps between policymakers’goals

and legislative reform (Beckett et al., 2016; Feeley, 1979; Hagan, 1989; Lara-Millán & Van

Cleve, 2017).

Second, this article applies this framework to the changes made to sentencing policy during

the Harper era and demonstrates how the context of Canadian criminal justice policy explains

the effect (or lack thereof) of changes to the Canadian sentencing regime. This article argues

that while there has been some impact on provincial government budgets, the Harper sentenc-

ing policy agenda was largely diluted by the institutional features and inflexible nature of the

criminal justice system. The focus here is primarily empirical, and it is not the intention of this

article to assess the virtues of the Harper government’s sentencing policy.

1

2|CANADIAN CRIMINAL JUSTICE: POLICY CONTEXT

Policy context can be established by identifying the various actors, structures, and symbols

(or ideas) that influence and constrain the enactment and implementation of policy

(Béland, 2009; Howlett et al., 2009; Peters, 2016). More specifically, the policy context can be

constructed through an examination of the diverse sources of authority held by individual

150 HOW THE SENTENCING SYSTEM IMPACTS POLICY REFORM