Making conduct criminal is society’s ultimate condemnation. But does it always contribute to safety?

The purpose of criminal law was originally to punish the perpetrators of serious misdeeds such as assault, robbery, rape and murder. In recent years however there has been a push to criminalize more and more behaviour because it is unsafe or unwanted. Pressure to use the Criminal Code of Canada as a preventive tool is based on the premise that criminal penalties act as a deterrent.  But research is proving this ineffective and raising important public policy issues. If simply imposing a harsh criminal sentence as a quick fix will not solve a safety problem, then what will? Smart justice asks the questions:

  • Are criminal penalties a more effective tool than less severe regulatory sanctions to prevent unsafe acts?
  • If criminal punishment is not the answer, what can ordinary citizens do to actually help increase the level of safety in their own communities?
  • And how does a quick fix differ from a smart solution?

Under Canada’s constitution, the federal government is responsible for criminal law. On the other hand, provincial and territorial regulations cover many aspects of day-to-day safety.

For example, provincial and territorial highway traffic acts regulate driving violations such as speeding and failure to stop at a red light. However, impaired driving offences are crimes. In fact, impaired operation of a vehicle is the single largest category of charges under the Criminal Code of Canada. Driving with a blood alcohol concentration (BAC) above 80 mg% is a criminal offence, while drivers with BACs below 80 mg% are subject to roadside license suspensions under most highway traffic acts.

Regulatory and administrative sanctions, such as fines and license suspensions, protect the public by providing a swift and certain response to an unsafe act. In contrast, criminal justice is a long and complex process. Criminal Code penalties can be imposed only if guilt is proven beyond a doubt; many safeguards apply to protect the rights of the accused and to prevent wrongful conviction.

There is no evidence that criminal penalties deter unsafe behavior more effectively than less severe sanctions. Rather, a large body of research clearly shows that people are less likely to offend when they believe they will be caught. Most chronic offenders—the ones who cause the most harm—do not believe they will be caught. Penalties, regardless of severity, have little preventive effect unless they are seen to be enforced. Visible enforcement has a greater impact on safety than simply having tough penalties on the books.

Certainty of being caught has a greater deterrent effect than severity of punishment. Hence, from a prevention standpoint, the critical factors are enforcement and conviction, rather than the nature of the penalty itself.

If stricter punishment is the most effective deterrent, offenders who go to jail should be less likely to re-offend when released than those sentenced to the milder penalty of probation. Yet the two groups tend to re-offend at about the same rates. Long prison sentences without other remedial programs may actually increase the chances of re-offending after release.

Judges should be able to determine the right balance of punishment and prevention within limits set by the law. Legislators therefore must allow sanctions to address risk factors that led to the offence in the first place, such as substance abuse, relationships and attitude.

Prevention is a more challenging goal than punishment. Yet in the long term, it is far more cost effective. Positive change is achieved by approaches that apply human psychology to an objective analysis of the problem.

Where there is malicious intent or wanton disregard for safety, criminal law is appropriate. Regulatory approaches, however, often provide the most effective tools to prevent unsafe behaviour, provided the measures are well enforced and supported by public education. To achieve some safety outcomes, legislation may not be needed at all; for example, increased public awareness may lead to the desired outcome.

If simply imposing a harsh criminal sentence as a quick fix will not solve a safety problem, what can we do to build safer communities? According to the Canada Safety Council, the best way to be safe in your community is to get to know your neighbours and build relationships around you, and they give many sound reasons for doing so:

As for knowing your smart solutions from your quick fixes, here’s what they say:

Quick fixes tend to be driven by emotion and political expediency. Most never receive a thorough and objective evaluation, yet may become accepted practices.

Smart solutions, on the other hand, aim for long-term improvements. Based on credible research and analysis of the situation as a whole, they take into account human psychology, cost effectiveness and potential impacts.

Smart justice supports the smart solutions.


Ethel Archard, Emile Thérien

With source material from the Canada Safety Council, used with permission