Review of Benjamin Perrin, Indictment: the Criminal justice System on Trial. Toronto: AEVO UTP, 2023.
By Noel Semple[1]
Lady Justice can often be found, in statute form, in or near courthouses. This symbol of the Western justice system is blindfolded to show neutrality. She carries a scale, to weigh facts and arguments fairly. Sometimes she also holds an olive leaf, to symbolize mercy and healing. A sword is the other accessory that Lady Justice invariably carries. The sword is a ubiquitous part of this symbol because most people believe that justice in general, and criminal justice in particular, necessarily involves inflicting pain upon wrongdoers.
Benjamin Perrin’s provocative new book Indictment is a call to leave the sword of justice in its scabbard. Perrin, a Professor at the University of British Columbia Faculty of Law, argues that Canada’s criminal justice system is “fundamentally flawed,” because its objectives cannot be met by the painful and coercive techniques that it uses.[2] Perrin offers a new vision for criminal justice based on healing trauma, recentering victims, abolishing traditional prisons, and empowering indigenous Nations.
The book opens with a theory of crime’s origins. Trauma, Perrin argues, is crime’s “cause of causes.”[3] Painful life events, especially those that go untreated and unaddressed, lead to substance abuse and mental health problems. Those, in turn, are the proximate causes of most criminal acts. For example, 70% of federal offenders nationwide have substance abuse problems, and three in ten of the calls leading to police dispatch in Edmonton are related to mental health crises.[4] Adverse childhood experiences such as food insecurity and housing instability are particularly likely to set someone on the path to offending.[5] “Hurt people hurt people,” as Perrin explained to a journalist.[6]
Perrin mounts a direct challenge to criminal justice system orthodoxy. Deterrence, denunciation, and rehabilitation are among the primary stated objectives of the system in Canada.[7] The basic idea of deterrence is that Lady Justice’s sword scares people into staying within the bounds of the law. When they don’t, using the sword to inflict a wound proportionate to the offence is inherently the right thing to do, at least according to retributive theories of justice.[8] The painful punishments are also said to reassure and satisfy victims and members of the public who are offended by the crime. This reduces the chance that people will “take the law into their own hands” through vigilantism. Finally, to round out the traditional theory of crime and punishment, imprisonment and supervision of offenders give the state an opportunity to rehabilitate them.
However Perrinargues that because trauma is the real root cause of most crime, punishing its perpetrators is no more sensible than using a sword to beat back the ocean’s tide. A person experiencing a psychotic break from reality, who lashes out at someone she believes to be a demon, cannot be deterred from that behaviour by the threat of punishment. She does not deserve to be denounced, and incarcerating her without proper treatment has no chance of rehabilitating her.
Perrin argues that the overwhelming majority of criminal acts are fundamentally unsuitable for deterrence or denunciation. Offences committed by people with mental health problems — even when psychotic delusions are not involved — merit a response from the health system, not the criminal justice system.[9] The idea that using illegal substances is a matter of personal choice, which can fairly lead to criminal justice consequences, is mistaken in Perrin’s account.[10] In the absence of personal choice, neither denunciation nor deterrence of substance-related offences makes sense. Rehabilitation through the criminal justice system is also an empty promise, given how overwhelmingly painful incarceration is and how poor a job the system often does of getting people back on their feet.[11] Perrin sees an uncaring revolving door that moves people with mental health and substance-abuse problems through the system, back onto the street, and then inevitably back inside.[12]
Nor, Perrin argues, is Lady Justice’s blindfold securely attached. Black and indigenous people are overpoliced, overcharged, and over-incarcerated relative to others.[13] They are vulnerable to mistreatment by police and prison guards, and they have little recourse when this comes to pass.[14] Meanwhile punishments such as solitary confinement fall far more heavily on people with mental health conditions than they do on others, putting the lie to the idea of proportionality in penalties.[15]
The Inadequacies of Criminal Justice Reform
Perrin acknowledges that he is not the first to identify these problems with the Canadian criminal justice system, and he acknowledges that efforts have been made to respond to them. However, he is unimpressed by these efforts. “Problem-solving” courts – drug court, alcohol court, mental health court – seek to deploy multidisciplinary teams to address the problems that led to offending behaviour.[16] They waive or reduce punishments for those who acknowledge their problems and commit to addressing them under court supervision. The basic principle behind these courts is that Lady Justice will offer an offender the olive branch, while still brandishing the sword in her other hand in case her conditions are refused. However Perrin argues that the commitments to abstinence and treatment demanded in problem-solving courts are unfair and unrealistic. Moreover, the premise of a problem-solving court is that the “root problem” is a substance or a mental health problem, when in fact, he argues, the root problem is usually trauma.[17]
Nor is Perrin satisfied with the system’s reform efforts regarding indigenous people. The Supreme Court of Canada’s proclaimed efforts to reduce indigenous incarceration through the Gladue and Ipeelee precedents have had little success, he writes.[18] Over the quarter-century since Gladue, the proportion of federally incarcerated people who are indigenous increased from 12% to 32%.[19] Perrin finds specialized courts for indigenous people hamstrung by the insistence on guilty pleas, by a lack of cultural knowledge, and by a refusal to actually apply indigenous law. He notes that sentencing circles, although much discussed, are extremely rare in practice.[20]
Victims on the Margins
Two insightful chapters of the book are dedicated to crime’s victims. A Canadian criminal matter is a drama with three stars: the Crown, the accused, and the judge. Victims are at best supporting actors, as witnesses and as sources of impact statements. Often, they are not on stage at all, especially in the cases (constituting the majority) in which there is a guilty plea.
The fact that criminal law puts the Crown in the driver’s seat, even though most offences have little or nothing to do with the government or its interests, is a feature of our system so deeply ingrained as to seem almost inevitable. This book helpfully surfaces it for scrutiny. There is a victims’ rights movement which produced the 2015 Canadian Victims Bill of Rights.[21] For Perrin, however, this remains only an “add-on” which sits awkwardly with the basic fiction that crimes are committed against the state, and not against victims.[22] Perrin tells at length the stories of several crime victims whom he interviewed, finding them befuddled, ignored, and disempowered.
Undue Process
Every first year law student learns about certain features of the criminal justice system that are meant to safeguard the interests of the accused. People are presumed to be innocent unless and until guilt is proven beyond a reasonable doubt, and they have the right to remain silent among other procedural rights.[23] However to Perrin these “due process” doctrines are at best a mixed blessing.[24] They emerged in England and were grafted into Canada because the punishments are so severe. They would not be necessary if lengthy incarceration terms were not imposed as routinely as they are in Canada today. Meanwhile, Perrin finds that they disincentivize people to take responsibility for their actions, which in turn undermines the prospects for true reconciliation and healing between victim and offender.
A Path Forward
Part II of Indictment presents Perrin’s reform agenda. His starting point is the work of Canadian scholar Ruth Morris on transformative justice.[25] Morris argued, and Perrin agrees, that the only path to collective security is creating a community in which everyone is cared for and included. Morris called for the abolition of prisons as we know them, and Perrin makes this case as well. He advocates for the Norwegian approach, in which prisons are dedicated to preparing people for life after incarceration. The deprivation of liberty is considered punishment enough, and so life on the inside of a Norwegian prison is much less unpleasant than it is in Canada.
Perrin’s version of transformative justice centers the idea that “trauma that is not transformed is transmitted.”[26] One key way to transform it is restorative justice, which seeks to create dialogue between offenders, their victims, and the community. Restorative justice focuses on healing the breach created by crime, and puts victims in a central rather than marginal position. Perrin would like to see restorative justice become the “primary gateway for addressing harm,” and always tried first.[27] If it fails, a “conflict resolution committee” could be convened, hear from all interested parties, and then implement a remedy after a crime. Voluntary treatment and/or acceptance of responsibility would be the preferred options at this stage, with referral to police and prosecution as a fallback.[28]
Perrin calls for the general decriminalization of substances, a case made comprehensively in his previous book Overdose. Chapter 12 argues convincingly that the state must work harder to prevent childhood trauma; the evidence suggests that doing so would prevent a great deal of violent crime in the long run. He would allocate significantly more control over policing and criminal justice to indigenous Nations.
Another big idea in this book, reflecting recent scholarship, is that the criminal justice system is asked to do too much in Canadian society.[29] If preventing and healing trauma is the most important work, then it follows that the caring professions (social work, medicine, education, etc.) should take the lead rather than law-enforcement authorities. Perrin argues compellingly that doing more and better work outside of the system would reduce the amount of offending and thus the demands on the system. For example, he thinks that a large proportion of 911 calls should be responded to not by police, but rather by unarmed, un-uniformed mobile response teams trained in mental health and substance abuse issues.[30]
Indictment is a bold and provocative new perspective on Canada’s criminal justice system. It is an engaging read, thanks to a methodology that foregrounds lengthy interviews with people directly affected by the system. The background research is plentiful, although this is not necessarily evident on a first read of the book. Interestingly, the endnotes are not referenced in any way in the body of the text. Perrin or his editors seem to have decided that even superscript numerals alerting readers to notes would be too distracting, or make the book seem too academic.
Evil and Personal Choice?
Human evil has little place in Benjamin Perrin’s conception of crime and the state’s responses to it. The conventional view is that there is such a thing as evil, and it does play a role in crime. Evil is not born of trauma or mental health problems or substance use. It emerges from greed, lust, wrath, and other human frailties. It seems hard to deny (for example) that Ponzi scams, car thefts, and armed robberies are at least partially attributable to the simple fact that some people want money and don’t care whom they hurt to get it. It seems hard to believe that, if there were no trauma in Canada, there would be no crime.
Acknowledging human evil does not mean denying the existence of trauma, and racism, and other social forces that contribute to crime. Nor does it require believing that any individual is purely or irredeemably evil. As Aleksandr Solzhenitsyn wrote, “the line dividing good and evil cuts through the heart of every human being.”
However, if evil does exist, and if it does contribute to crime, then it seems problematic for the criminal justice system to throw away Lady Justice’s sword, abandoning deterrence and denunciation. Evil acts can be deterred, if people fear punishment more than they crave the fruits of their sins. To some degree, people can make personal choices to respect the bodies and the property of others. If they choose not to do so, denunciation may be morally justified. Even if it isn’t, the widespread popular demand for punishment of transgressors might require some response from a democratic state in order to prevent vigilantism.
Indictment is recommended as a bracing and thought-provoking impeachment of Canada’s criminal justice system. The “more compassionate and evidence-based response to harm in our society,” which is proposed here, is urgently needed.[31] Even if you emerge not entirely convinced by some of the more radical claims in this book, you will see the criminal justice system in a new and clearer light.
[1] Associate Professor, University of Windsor Faculty of Law.
[2] Benjamin Perrin, Indictment: the criminal justice system on trial. Toronto: AEVO UTP, 2023, at page 64.
[3] Perrin, supra note 1 at pages 37.
[4] Perrin, supra note 1 at pages 43, 54.
[5] Perrin, supra note 1 at page 16.
[6] Pippa Norman, “Canada’s criminal justice system put on trial in UBC professor’s new book.” City News, October 8, 2023. https://vancouver.citynews.ca/2023/10/08/ubc-criminal-justice-system-book/
[7] Criminal Code (RSC, 1985, c. C-46), s. 718.
[8] Michael S Moore, “Justifying Retributivism” (1993) 27:1–2 Israel law review 15–49.
[9] “Deterrence is nonsensical when dealing with people in mental health distress because of their underlying conditions.” (Perrin, supra note 1 at page 65).
[10] Perrin, supra note 1 at page 29
[11] Perrin, supra note 1 at page 73 regarding the very poor employment outcomes of ex-offenders in Canada.
[12] Perrin, supra note 1 at page 53.
[13] Perrin, supra note 1 at page 100 and 129.
[14] Perrin, supra note 1 page 54.
[15] Perrin, supra note 1 page 69.
[16] Sherry L Van de Veen, “Some Canadian Problem Solving Court Processes” (2004) 83:1 Canadian Bar Review 91, online: <https://canlii.ca/t/2cjc>.
[17] Perrin, supra note 1 page 39.
[18] R. v. Gladue, [1999] 1 SCR 688, R. v. Ipeelee, [2012] 1 SCR 433.
[19] Perrin, supra note 1 at pages 107 to 108.
[20] 110
[21] Canadian Victims Bill of Rights (S.C. 2015, c. 13, s. 2). Online: https://laws-lois.justice.gc.ca/eng/acts/c-23.7/page-1.html
[22] Perrin, supra note 1 at page 184.
[23] Canadian Charter of Rights and Freedoms, s. 11.
[24] Perrin, supra note 1 at page 153.
[25] Ruth Morris, Stories of Transformative Justice. Toronto: Canadian Scholars Press, 2000.
[26] Perrin, supra note 1 at page 203.
[27] Perrin, supra note 1 at page 280.
[28] Perrin, supra note 1 at page 280 to 284.
[29] Laura Huey, The wicked problems of police reform in Canada, Routledge Series on Practical and Evidence-Based Policing (New York, New York ; Routledge, Taylor & Francis Group, 2023).
[30] Perrin, supra note 1, Chapter 15. Such programs now exist, at least in pilot projects, in several Canadian cities. See for example the Toronto Community Crisis Service: https://www.toronto.ca/community-people/public-safety-alerts/community-safety-programs/toronto-community-crisis-service/.
[31] Perrin, supra note 1 at page 197.