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Jerry Amernic: On violent crime, the more things change the more they stay the same

Commentary

Last month a few police chiefs got together and called for better safeguards to protect society from repeat violent offenders. They said anyone convicted of using a weapon to commit a violent crime should not be eligible for release. They were concerned with the bail system because one offender with over 30 convictions had attacked a woman with a pipe, spent two days in jail, and was released on bail only to face new charges. Another with over 50 convictions got bail after failing to make his previous court date. He was re-arrested too. But this problem goes beyond bail. It’s also a problem with repeat violent offenders out on parole or other forms of early release. And it isn’t new.

Public safety be damned. The truth is, repeat violent offenders can and do get away with murder. Literally. The one who takes the cake is Clifford Olson, the most notorious serial killer in Canadian history.

Back in the 1980s he was convicted of 11 counts of first-degree murder. His victims, male and female, ranged in age from eight to 18. I got to know the parents of some of them when doing my first book, VICTIMS: The Orphans of Justice. It was about an ex-cop whose daughter was murdered by a stranger free on mandatory release from federal penitentiary. Today mandatory release is called statutory release and comes after the offender serves two-thirds of the sentence. The killer had been out one week when he committed the murder and local police didn’t know he was on the street. The father went on to form Victims of Violence, a self-help group for victims of violent crime. Another member of that group was the mother of a two-year-old girl who had been raped and murdered. Yes, two. Her killer had been free on mandatory release as well.

Olson, who died in penitentiary in 2011, was a classic example of how our system of early release failed the public. Keep in mind I’m talking about repeat violent offenders who keep going in and out of jail. I’m not talking about non-violent offenders or those convicted of crimes they didn’t commit. When it comes to the latter, I think police, attorneys, judges, what have you, should be held accountable, but so should anyone responsible for releasing dangerous repeat offenders. However, they aren’t.

Let’s have a closer look at Olson.

Between 1957 and 1981 he spent 21 years behind bars for more than 90 convictions. This was before he was ever wanted for murder. His record included obstructing justice, possession of stolen property, unlawful entry into a dwelling house, possession of firearms, forgery, armed robbery, escaping lawful custody, and breaking and entering and theft.

Parole is supposed to be granted for good behaviour when authorities deem the person no danger to society and not likely to re-offend. That’s the theory. Well, Olson got paroled, and not once but twice. When on parole the first time he committed new crimes and his parole was revoked. But here’s the kicker. Despite losing parole that time and despite seven prison escapes he got paroled again! He committed new offences and his parole was revoked.

Was he a problem inmate when incarcerated? Yes. There were seven transfers between institutions. Enter the mandatory or statutory release granted to offenders not convicted of first-degree murder. As mentioned, it comes after two-thirds of the sentence even if parole was denied after one-third.Those in government circles—the National Parole Board, Correctional Service of Canada, Department of the Solicitor General, members of parliament—will talk about public safety until the cows come home. But I have found they don’t always tell the truth.

Over a period of seven years, Olson had been free on mandatory release six times. Five times it was suspended and revoked. While on mandatory release he committed many crimes. After his final arrest he was charged with 11 counts of first-degree murder, all of which resulted in convictions. But only after Olson made a deal with the feds who put $90,000 in a trust fund for his wife and son in exchange for him leading authorities to missing corpses and confessing to the murders.

The country was outraged. After his incarceration, I know for a fact that he continued to phone and harass the parents of his victims.

At the time of his arrest there was a slew of charges against him that were either stayed or before the courts. They included kidnapping with robbery and violence, sodomy with a 14-year-old male, indecent assault, gross indecency and sodomy with a 16-year-old female, two charges involving firearms, indecent assault with a 16-year-old female, and more. Yet, at no time in his decades-long life of crime was Olson declared a habitual criminal or dangerous offender.

He was smart and knew the law. He informed on other offenders and made deals. At one time he even received $3,500 from the Saskatchewan Criminal Compensation Board after being stabbed by inmates at the Prince Albert Penitentiary.

Clifford Olson was a victim.

If you’re a taxpayer learning this for the first time I can imagine your reaction. And it would be easy to dismiss this as something from the past which has since been rectified. But has it?

I don’t mean to be glib when I say public safety be damned, but I’m not convinced much has changed. Just last week a sixteen-year-old was stabbed and killed in an unprovoked attack at a Toronto transit station. The accused killer? Jordan O’Brien-Tobin, a 22-year-old out on multiple releases.

Witness also the recent decision by the New Brunswick Court of Appeal concerning Justin Bourque who shot and killed three Mounties in 2014. He ambushed five officers, but two survived. Bourque is now eligible for full parole in 16 years and day parole in 13 while the families of his victims serve real life sentences. The New Brunswick decision followed that taken by the Supreme Court of Canada which in May last year rejected a federal law allowing judges to sentence multiple murderers to consecutive—not concurrent—life sentences.

In 2011 the Conservative government of Stephen Harper gave judges the authority to implement consecutive life sentences. You get convicted of three first-degree murders and must serve them one after the other. That makes 75 years. Until then, anyone convicted of multiple first-degree murders would serve their sentences concurrently, which in government speak means you serve all those sentences at the same time.

I used to say in Olson’s case he was convicted of 11 counts of first-degree murder, but the last ten didn’t count because the sentences were concurrent.

The Supreme Court of Canada deems consecutive life sentences for multiple murderers cruel and unusual punishment. What is the upshot of its decision? Alexandre Bissonnette, who in 2017 killed six people at a mosque in Quebec City, had his consecutive murder convictions quashed and is now serving concurrent sentences. The same is true for John Paul Ostamas, who killed three homeless men. And Derek Saretzky who also killed three people, one of whom was a two-year-old. They are all serving concurrent life sentences. But how do you serve multiple life sentences at the same time? The only way I can visualize it is with mirrors that distort reality.

When I wrote my book about victims I researched crimes—violent crimes—committed by offenders on parole or mandatory release and this is what I found.

The whole system was largely run by numbers. If it was deemed cheaper to have the offender serve the last third of the sentence in the community—where again according to theory they were being supervised—as opposed to the more expensive proposition of incarceration, the bureaucrats were all in for mandatory release and everything was geared to that end. Mind you, no one would ever admit such a thing. Then I got my hands on a government report, the Solicitor General’s Study of Conditional Release. It looked at crimes committed by offenders on early release. And right there on page 44 it said:

“Penitentiaries have a strong interest in seeing as many full releases as possible occur in order to save costs.

Talk about a smoking gun. This state of affairs applied to bank robbers, sexual assaulters, manslaughterers, what have you. Of course, first-degree murder was different because anyone convicted of that had to serve their 25-year life sentence before a chance at parole.Let’s take this to a hypothetical level. Assume Osama bin Laden unleashed his 9/11 havoc on skyscrapers in Toronto’s financial district. Innocent people are killed and Osama is convicted of 3,000 counts of first-degree murder. But all those sentences must be served concurrently which means, according to present law, Osama would have his chance at day parole after 22 years and full parole after 25. After all, there is the Charter to think of, the man has his rights, and there is always the chance of rehabilitation. That was the mantra of our criminal justice system in 1982. And 2001. And I have no doubt it is the mantra today, especially in lieu of the Supreme Court of Canada decision mentioned earlier.

Mind you, the scenario just posited would not result in Osama’s release. That would be bad PR. But according to Canadian law, his early release is possible. Conclusion? There is something wrong with Canadian law and on this question the Supreme Court of Canada is out of touch.

I read an article about former NHL goaltender Don Edwards whose parents were murdered by his sister’s ex-boyfriend. The killer is now eligible for full parole. The article referred to National Parole Board members who “believed he was at low risk of repeating the terrible violence of the killings” and quoted an NPB spokesperson who said that in the past ten years, more than 99 percent of day- and full-parole releases were successfully completed without violent offences.

It brought to mind something I once learned about rates of recidivism as espoused by the authorities. We have a federal correctional system—anyone sentenced to more than two years goes to a federal penitentiary—and a provincial system—anything less than that and you go to a provincial prison.

What constitutes a successful release? I’ll tell you how it used to work. In the federal system, an offender who was paroled and didn’t return to a federal penitentiary for new convictions was a success. But what if the offender was convicted of new crimes and received an 18-month sentence which meant he wound up in the provincial system? Well, he wasn’t in a federal penitentiary so that must be a successful resolution of his parole. What if he committed 20 crimes while on parole but the charges were stayed? No convictions. He didn’t return to the federal system so he was a success too, and never mind the little old lady attacked on the street or the homeowner whose house got trashed. But then victims always get the short end of the stick. So, what is the lesson learned?

Figures can lie and liars can figure.

If there is a police officer out there who believes that in the past ten years more than 99 percent of day- and full-parole releases were successfully completed without violent offence, please get in touch.

Now I suffered through years of poorly taught French in school but understand plus ça change plus c’est la même chose. It applied to our criminal justice system when I first started writing about violent crime and it applies now. At least, where repeat violent offenders are concerned.

Over the years politicians and governments come and go but one thing remains constant: the overwhelming number of violent crimes committed by the same people who keep going in and out of the system. The more things change the more they remain the same.

And public safety be damned.

Howard Anglin: The Roxham Road deal is a good first step

Commentary

It’s always nice when a guest brings a thoughtful gift. Prime Minister Trudeau had reason to be particularly grateful for visiting U.S. President Joe Biden’s agreement to expand the Safe Third Country Agreement (STCA) to cover illegal migration at Roxham Road and all other points along our shared border. It’s something Canadian governments have been asking for for more than a decade, and something Trudeau needed to mollify a Quebec government whose patience at federal inaction had, quite understandably, run out. From Trudeau’s perspective, it was the perfect gift. 

From my perspective, it is a good start. But there are still too many loopholes and the revised STCA will require determined enforcement if it is going to be the deterrent that both countries hope it will be. To explain why, it is important to understand what the STCA already was, and wasn’t, and what the new protocol means it could be. 

Under the STCA that Jean Chrétien and George W Bush signed in 2002, and which came into effect in 2004, Canada and the United States agreed that if someone from a third country attempted to enter Canada from the United States or vice versa to claim asylum, they would be sent back to make their asylum claim in the country they entered first. This reflected a principle of the 1951 Refugee Convention that persons are expected to end their onward journey from persecution in the first safe country they reach. There is no right to forum shop for asylum.

There were exceptions to the STCA from the beginning. Most notably, it only applied to would-be asylum claimants who presented themselves at an official border crossing. If they arrived at an inland port of entry by train or airplane, it did not apply. And it didn’t apply if you simply walked across the border. Naturally, this is what many migrants started to do, and Roxham Road, with its proximity to transportation by bus and taxi, became the most popular and most notorious illegal crossing point. In 2022, the RCMP intercepted 39,540 migrants along the 5,524 miles of the Canada-U.S. border. Of those, 39,171, or 99 percent, crossed the border into Quebec, and almost all of them at Roxham Road.

There are other loopholes in the STCA, including one for persons who have a relative in the country they would otherwise not be eligible to enter. The definition of “relative” is much broader than that used in most Canadian immigration laws and includes adult siblings, aunts, uncles, nieces, and nephews. This exception is further loosened in practice by the fact that Canada doesn’t typically require persons to prove the relationship. When I worked at the Department of Immigration, I heard of CBSA agents accepting phone calls and hard-to-verify or easily-forged unofficial documents as sufficient evidence. This exception remains, but it could be tightened if Canada insisted on proof by the official government or a DNA test to access it.

The newly-announced protocol to the STCA will close the major loophole. It will allow Canada to send migrants back to the United States to claim asylum there if they are apprehended within 14 days of crossing the border, subject to a few exceptions. It is a significant and welcome improvement to an agreement that had become as porous as our border. Quebec Premier Legault hailed it as a “great victory,” which will no doubt come as a great relief to the prime minister.

The usual critics, of course, issued the usual hysterical denunciations, predicting misery and chaos. They should be ignored. During the COVID pandemic, Canada and the U.S. trialled a form of the current protocol and the number of border-crossings almost completely dried up. That situation can’t be compared directly to today, as travel from the migrants’ countries of origin was also impeded by global travel restrictions, and the Biden administration’s lax approach to the southern U.S. border has seen a marked increase in illegal migration there, which may have a knock-on effect at the northern border. But it shows that cooperation and enforcement can make a difference.

Contrary to what critics say, the new protocol brings Canada and the United States more in line with the letter and spirit of the 1951 Refugee Convention. The convention is anachronistic in many ways, as you would expect of a 72-year-old agreement, but Article 31, which reflects the principle that asylum shopping should not be tolerated, remains relevant. 

I have written elsewhere about the negotiation of Article 31, but the short story is that the French delegation sought assurances that the large number of refugees from central and eastern Europe who were in safe third countries bordering France would not be able to continue on into France to make asylum claims. As the French spokesman said, “[t]o admit that a refugee who had settled temporarily in a reception country was free to enter another, would be to grant him a right of immigration which might be exercised for reasons of mere personal convenience.” 

The British delegate argued that the language of the initial draft of Article 31, which required a person crossing a border illegally to “show good cause” for his illegal entry into another country, satisfied the French concern. The French disagreed and, in the end, the French concerns prevailed. The final version of Article 31 clearly limits its application to persons “coming directly from a territory where their life or freedom [is] threatened in the sense of Article 1.” That is the principle behind the original STCA, and the new protocol reinforces it. 

If the new protocol is a welcome improvement, why do I say that it is only a good first step? There are two main reasons: one that relates to the terms of the protocol itself and one that concerns its enforcement. First, the new protocol contains an exception for undocumented minors, which is a category we have seen exploited at the southern U.S. border with disastrous humanitarian consequences. There is no reason why unaccompanied minors cannot be dealt with in whichever country they entered first, just like any other migrant. 

Nothing is gained by creating an exception for them, and much could be lost. Specifically, it will create a dangerous incentive for unscrupulous human smugglers to send underage children on ahead, alone, so that their families can then avail themselves of the exception for relatives once the child is established in Canada. This was a reckless oversight and the exception, not the new general rule, will endanger vulnerable children. And that is assuming we can tell whether a person without papers is a child in the first place—a dodge that central American gangs have exploited for years in the United States. 

On the enforcement front, the two-week window to return illegal border-crossers sets up a race against the clock for law enforcement. If we can show quickly that we can catch and return the large majority of migrants, then the deterrent effect of the new protocol will kick in as there will be less incentive for people to try their luck in the first place. Over time, this is the best hope to interrupt established migration patterns and reduce illegal border crossings. But if would-be migrants see that we are not able or interested in enforcing the agreement, or if the refugee lobby is able to use lawfare to convince activist judges to frustrate the agreement, then this week’s agreement will have been in vain. 

To ensure the protocol succeeds, Canada should significantly increase its enforcement at all likely crossing points. Contrary to what you often hear from critics of the STCA, there aren’t that many convenient places for migrants to cross the border, especially during the winter. Physical deterrence at these places should be complemented by a major increase in technology—cameras, drones, and invisible fences—to better monitor the border. This all should have been done years ago, but it makes particular sense now. 

The government should also ask for U.S. cooperation in setting up joint RCMP-U.S. Border Patrol patrols that would operate on both sides of the border to intercept illegal migrants. These units could be modelled on the existing Shiprider program, which was set up in 2012 to allow the RCMP and the U.S. Coast Guard to conduct joint patrols of the Great Lakes to intercept smuggling.  

In addition to these operational challenges, the government should be prepared for a wild card. In 2020, a Federal Court judge ruled that the STCA violated the Charter rights of certain migrants. Sanity prevailed at the Federal Court of Appeal, which overturned the Federal Court decision. Last October, the Supreme Court of Canada—a place where sanity is far from guaranteed—heard the appeal of the case, and the justices’ ruling could come anytime between now and the summer. If the Court is reckless enough to invalidate the STCA, which has been in place for almost two decades, the government should be prepared to step in and use its political powers to save it, and to preserve the gift that Biden just handed them.