Criminal Justice Policy during the Harper Era: Private Member’s Bills, Penal Populism, and the Criminal Code of Canada

Abstract

During the 2015 Maclean’s election debate, Stephen Harper commented, “we have more private member’s legislation that has gone through Parliament under this government than multiple governments before us.” This statement is borne out by empirical evidence: more private member’s bills (PMBs) have become law during Harper’s time in government, compared with most previous parliaments. However, PMBs are subject to less analysis than government bills and do not receive legal scrutiny by the Department of Justice, potentially implicating the protection of rights. Moreover, while one might assume that PMBs concern innocuous local and/or specialized interests, many Harper era PMBs effect substantive legal change to national issues like criminal justice policy. This paper examines the law and order trend in PMBs and addresses the following: why would the PMO under Stephen Harper, noted for its centralized control over all aspects of public policy, permit backbench MPs a role in criminal justice policy, through PMBs?

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

“…Although previous governments like the Chrétien-led Liberal government (1993)(1994)(1995)(1996)(1997)(1998)(1999)(2000)(2001)(2002)(2003) had enacted significant reforms 7 to the criminal justice system, the Harper government distinguished itself in a few ways from previous governments with respect to criminal justice policy (Roberts et al, 2003). First, punitive criminal justice policy was a key focus of election platforms, Speeches from the Throne, and legislative outputs (Doob & Webster, 2016;Hennigar, 2017;Kelly & Puddister, 2017;Stobbe, 2018). During the CPC government, approximately 20% of government bills contained measures focused on the criminal justice system (Stobbe, 2018, p. 2).…”

“…During the CPC government, approximately 20% of government bills contained measures focused on the criminal justice system (Stobbe, 2018, p. 2). Criminal justice policy was a clear priority for the legislative agenda, and the Harper government also supported a record number of criminal justice private members' bills introduced by backbench CPC parliamentarians (Kelly & Puddister, 2017).…”

“…Policymakers can be tempted to enact criminal justice policy for purely symbolic reasons in an attempt to position themselves as tough on crime in order to appeal to voters. When policies are created with little regard for effectiveness and implementation, the result can be considered penal populism, an approach to criminal justice policy that marginalizes expertise and evidence and is more concerned with appealing to the public's fear of crime (Kelly & Puddister, 2017, p. 395; Roberts et al, 2003, pp. 5–6).…”

“…This focus resulted in policies that emphasized deterrence, incapacitation, and denunciation (Doob & Webster, 2016; Webster & Doob, 2015). This approach to criminal justice policy frequently put the Harper government in conflict with justice system experts, including academics, who were often ignored in the policymaking process and at times were vilified by policymakers (Doob & Webster, 2013; Kelly & Puddister, 2017; Snow & Moffitt, 2012; Webster & Doob, 2015). Third, the focus on punitive policy coupled with the rejection of expertise led some scholars and commentators to question whether the Harper government was engaging in penal populism, wishing to appear tough on crime with little regard to the implementation or effect of policy reforms (Jones, 2015; Kelly & Puddister, 2017; Kerr & Doob, 2015).…”

The People’s Champ: Doug Ford and Neoliberal Right-Wing Populism in the 2018 Ontario Provincial Election

“…This inherent binary between populists and non-populists belies research findings noting periodic forays into populism among leaders and parties not typically thought to be populist. This is particularly prescient in the Canadian literature on populism, where a number of scholars have persuasively demonstrated the Harper government's periodic affinity for populist appeals (Kelly & Puddister, 2017;Sawer & Laycock, 2009;Snow & Moffitt, 2012). The ideological approach has trouble accounting for these populist displays by non-populists, representing a significant incongruence between theory and empirical reality.…”