Transcript: Benjamin Perrin

My interview with the UBC law professor and author

Crime in Canada is on the rise. According to recent Statistics Canada data, violent crime is at its most severe since 2007, and the murder rate is the highest it’s been since 1992. My guest on this week’s program says our criminal justice system is not working — that it is expensive and ineffective and inhumane, and that the time has come to transform it. 

Benjamin Perrin is a professor at the Peter A. Allard School of Law at the University of British Columbia, and the former lead policy advisor on criminal justice and public safety for Prime Minister Stephen Harper. His new book is Indictment: The Criminal Justice System on Trial.

This is an edited transcript for paid subscribers. You can listen to the episode for free here.

---

TH: Ben, welcome back to Lean Out.

BP: Thanks so much.

TH: It's great to have you on today to talk about Canada's criminal justice system. This is an issue I care deeply about. I spent my early years as a journalist interviewing rappers whose lives had been profoundly impacted by police and the prison system. Your new book is an indictment of how dysfunctional our system is, and it makes for difficult reading. But you opened the book with your father-in-law's story. Tell us about him — and how he's influenced your thinking.

BP: Yeah, I had a really personal connection to some of the broader themes in the book. My father-in-law was abandoned essentially as a young child, left dislocated from his mother around age three, and sent to a very abusive boarding school at age five. I'd heard about some of this stuff, but didn't really understand about how childhood trauma impacts people throughout their life course.

When I entered into the family situation, I had a really awful relationship with my father-in-law to start with. It was very difficult. I had no idea, for example, and I don't think he did either, that he also had FASD. He had PTSD. A number of other things, as well, a lot of undiagnosed mental health issues. As an Indigenous man who was not raised in his Indigenous community or by his Indigenous mother, he felt completely disconnected from his own identity. His father is Chinese, so he connected to a very different set of cultural beliefs and practices. Anyway, he also developed addictions to alcohol and a number of different substances. It's really hard to have healthy relationships with all these things going on, and you don't know. We did our best to try to navigate that and have some understanding as best we could. But it got to the point where, for quite a while, we were not talking to him. There was a question of whether he'd even be able to come to our wedding, the wedding of his daughter.

But incredibly, things changed for him. Our relationship today is absolutely wonderful. The big inflection point for him was when he — on the verge of being homeless, really, as he says — decided to go out into the wilderness. He didn't have any cultural teachings around this. It was as he was leaving that he saw a documentary and realized that this sounded a little bit like a vision quest that his Indigenous forefathers had practiced. He went out for 70 days with his two horses and a cell phone that he'd try to charge up every now and then when he could find access to some campsite. It was a completely transformative experience for him. So, I opened the book with his story and end it with his story. He also was caught up in the criminal justice system and he was hurt as a person and he hurt other people. The story opens with the RCMP in a helicopter literally hunting him down in the wilderness of Kananaskis Country, Alberta. I won't spoil the story for readers, but it's a really powerful story of how, if we do things differently, we can have quite incredible outcomes rather than throw the book at people. The police did actually let him go and allowed him to finish his time in the wilderness. He came out of that completely free of his addiction to crack cocaine. That was a starting point of a real change. He went through a whole spiritual transformation. And, as I said, that was the start of some really big changes in our whole family. It's been incredible to get to know him and to understand him and have more empathy for him. And to have him share his story with our kids — and be willing and interested to share it in the book.

TH: It does such a good job of two things, I think, at the beginning of the book: grounding the book in hope and optimism — that people can get well — but also bringing it home that this crisis we're experiencing in this country right now is our family members. It is our neighbors. It is our friends. It is our community members. On that note, before we dive into some of the nuts and bolts of policy, I want to talk just quickly, as you do at the beginning of the book, about trauma and the role that plays for both victims and offenders. Just to be clear, this is not the kind of trauma we are hearing about on campuses. This is not microaggressions, or anything like that. This is things like physical and sexual abuse, like having a parent incarcerated. Why is understanding how prevalent this kind of trauma is among those caught up in the system so important for figuring out where we go and how we fix it?

BP: I believe we can't understand any criminal justice story or incident without a deep understanding of trauma. At its very basic, we know that people who experienced childhood trauma, things that you mentioned a minute ago, are 50% more likely to harm others later in life. There's that saying, "Hurt people hurt people." The research does back that up. It's not a foregone conclusion, right? It's not fatalism. But you're much higher risk. Likewise, I found it really disturbing and shocking to hear that you're also more likely to be victimized again later in life. You're, in fact, eight times more likely to be sexually victimized as an adult if you were abused as a kid. The origins of harm in our society start at the earliest possible stages. And actually, we know they go back generationally and intergenerationally through families. Particularly, we see that with Indigenous people as a leading example of that. But it's not limited to Indigenous people.

That's why I start the book there. I think if we don't understand trauma, we will mistake and get wrong pretty much everything with the criminal justice system. One example of that, just a really simple, straightforward, clear one would be if you're assessing a witness's testimony — whether it's the accused, whether it's a complainant, whether it's a third party — and they are someone with unresolved trauma. Judges and juries are told through our law of evidence, which I've taught, that they're supposed to use their common sense understanding of how people would present. What that means is if someone's describing what we would objectively think is a really horrific event, but they have no emotion — they've got flat emotion, they're almost describing it in a robotic way — there's a tendency, I think, for people to say, "Did that really happen? It doesn't seem like this person really went through that. They are so flat in how they're describing it."But anyone who understands about trauma would understand that that person is probably dissociated. Their numbness in describing this sort of situation is a common way that some people with unresolved trauma would deal with that. Another one relates to how we tell our stories, and trauma impacts the brain. It impacts your ability to tell your story in a clear and chronological way. I saw that in our interviews.

This book is really about two things. It's about the lived experiences of people, rather than looking at the world the way the criminal justice system does. Which is: At this one moment in time, did you do this thing that you weren't supposed to do? It's like looking through a straw at the world. You're just not seeing the whole picture. So, we really zoom back. I think if we're serious about addressing harm in our society, we have to understand how trauma impacts people throughout the system.

TH: You mentioned the interviews that you did. You did extensive interviews with people. For listeners who may not have had any contact with people who have gone through our prison system, can you paint a picture for us of the kinds of conditions that people encounter when they go into our prisons?

BP: It's really awful stuff. I was shocked, to be honest, about some of the stories that I heard, the incredible cruelty that I heard. Everyone has a different experience in prison, but we know that virtually universally, it's a very negative, very toxic, very traumatic one. Without getting into really graphic detail for folks who aren't maybe prepared to hear some of this stuff, just to give a sense of the hopelessness, [I’ll tell you about] the first person who responded to our research poster, which we put at halfway houses and women's shelters across the country, asking both survivors and people who had been incarcerated. One question was, "What was your experience like with the criminal justice system?" We later asked them, "How could things have been done better for you, to get a better outcome?" The first person who responded was —everyone's got a pseudonym — I call her Courtney in the book. If people read the book, that's who I'm talking about here. She is 39 years old, an Indigenous woman. I interviewed her. She first started being incarcerated at 12 years of age. So, it's not even like people were in prison for most of their adult life. It's young children, really. From ages 12 to 39, she was in and out, in and out, in and out of different youth, provincial, territorial, and federal prisons. For 25 years.

I asked her, "What was it like being incarcerated as a young person?" Her initial answer, I was shocked by. Because I'd read about prisons already; I knew what I was going to probably hear. She said, "Oh, it was great." I was like, "This is interesting. This is not how I thought this research project is going to go. But okay, let's hear it." I, of course, asked her, "What was great about it?" She said, "They gave us three meals a day. Sometimes we even got a snack." That's what was good and amazing about her incarceration time. Then of course, I came to realize very quickly, again, something related to trauma. If your upbringing, your life, has been defined by abuse, that is your normal. So, prison was good because it was consistent with that normal, but you also got three meals. She went on to describe how, in fact, in that very same institution, whenever she even swore at the prison guards, she would be locked in a rubber room in isolation by herself. She talked about how it was a co-ed institution, how she would be harassed and asked for sexual favours by the boys.

Then she talked about when she was incarcerated in a federal penitentiary and continued to experience the prison violence, of trying to stand up for herself and having no one there, and turning to violence to protect herself, and learning how to do that in prison. She tried to take her life. One of the most disturbing things that she shared was the response they had to someone like her — this Indigenous woman who had an incredibly traumatic upbringing. Imagine what brings you to prison at age 12. [After the suicide attempt] she was basically quite literally stitched up, and put back in an isolation and segregation cell. That was the care that she was given. Just devastating. Just devastating stories like that. People who had substance use disorders, who overdosed in prison or afterwards, were fortunate to be alive. Many folks are not. They die in huge numbers in prison and immediately upon release. We also heard from people who asked for help.

One man who was sent to prison for just over 10 months was asked on entry, "Do you want any support?" He also tried to commit suicide and had mental health and substance use issues. He said, "Yeah, I want help. I want to talk to a counsellor. I'm ready." He said it was only two weeks before he left — 10 months into his sentence — that psychologists came by and said, "We're ready to talk to you. Would you like to have a conversation?" He said it made him feel like he wasn't even a human being. He'd asked for help. He says it was very clear that they were just “covering their ass,” in his own words, so they could say that he'd met with a counsellor.

TH: It's very disturbing reading. These are things that I have heard before in interviews, these kinds of conditions. It's difficult to know where we go from here. Because we are also seeing a lot of society-wide problems. And it's hard to know how to approach those. For example, we are seeing rising concerns about public safety across the country, with stranger attacks in Vancouver, and subway violence in Toronto. My producer just witnessed an incident two days ago on the subway. You've been critical of the “toughen bail conditions” position. These conditions were previously softened under the Trudeau government. Supporters of tougher conditions say we've seen a rise in repeat violent offenders on bail, probation, and parole, who are then responsible for attacks. This includes a man on probation with a lengthy criminal background, who then, unprovoked, murdered a 16-year-old boy in a Toronto subway station. If these conditions should not be toughened, then what should happen? What should we do?

BP: The approach that I take in this book is what I would describe as an evidence-based approach. I describe it as a new transformative justice vision. The first half of the book is all about why the system is the way it is, why we're getting these results. Those results you described are a product of our current system. They're not going to get better with more police, or keeping people for bail a little bit longer. I'll explain why in a second. Clearly, there's a need for some people to be separated from society because they pose a significant risk to people. The key, though, is we know that virtually everyone is eventually going to get out.

A couple of things happen when you deny someone bail. One is if they had housing, or a job, or had community mental health support, or were in substance use treatment — all those things are basically done. They're cut off. The second thing that happens is when you're in pretrial custody, you get extra credit. Because those conditions are so harsh, you get extra credit. You're sitting in there, waiting. In Canada, the Supreme Court has said that if you don't go to trial within 18 months of being charged — actually, your trial's not even finished, that's supposed to be done by then — then that's an unreasonable delay and the charges get withdrawn. There's a clock that's running. Now, let's say that you're guilty, okay? Your incentive is to wait out the clock a little bit, get that extra credit, plead out. Then, by the time you plead, the judge will literally say, "Oh, well, you're free to go tomorrow morning or today. You've served your time." You're back out. At that point, you have had no programs. You've had no support. There's been nothing to deal with the underlying causes. This is the revolving door that the system creates. That's why just saying, "Let's just deny bail," isn't going to work. But like I said, we do have a problem. So how do we deal with it? I think the key is for those people who do have to be separated from society — including at that earliest stage of you've just been charged — we need to completely abolish the way that we deal with the conditions of incarceration right now. All of the physical architecture. All of the people who work in the system, who are part of that system, need to get retrained and [shifted] to less traumatic roles, quite frankly. Many of them talked about the trauma they experienced, as well as corrections officers.

We need to take a very different approach. I talk in the book about what Norway does. The focus is on one question. It's, "What kind of a neighbor do you want to have?"Again, everyone is getting out. Rather than having someone who's in those current conditions we've talked about, instead, the environment looks a lot like a college campus. It's normalized. It's meant to model healthy relationships and behaviours. The access that you have is to things like vocational training. So, when you come out, you have an employable skill and a job. You have access to mental health support, substance use support, community support. People are coming into the place of custody and actually meeting with you and supporting you when you leave. Their goal is that you don't come back. And the results speak for themselves. They had a system very similar to ours. They had rates similar to ours of reoffending. Around 60% to 70% reoffending, within a couple of years probably, is most of the stats. Then it reduced down to just 20% when they took this more humane and innovative approach. We actually get better public safety outcomes if we are more humane. That's a big stretch for some people. Some people want to see harsh conditions and harsh punishment. My response to that is the punishment is that they're separated from society. You've lost your life. You're not at liberty. You're still locked in these places of incarceration. But we are all better off if you get better and not worse inside.

TH: Our system is very expensive. How does the Norway system compare in terms of cost for the taxpayer?

BP: I think we have to look at the lifetime cost of a chronic repeat offender in our system, because of someone going in and out, in and out, it's in the millions of dollars. I talked at the beginning about Courtney, who had spent 25 years [in the system]. The fiscal cost of that — if you just think of the incarceration period alone — is in the millions of dollars. If you add on all the other costs of the police officers’ intervention, the courtroom time, the prosecutors, the parole and probation staff, I'll throw out a figure. It’s probably $5 million to $10 million, is the back of the envelope estimate. That's a lot of money to spend on one person. And have horrific outcomes for them and for society, right?

I think that when we look at these evidence-based programs that I talk about, as part of a new transformative justice system, they have a couple of things in common. One is they have lower rates of recidivism. Another is they have higher rates of survivor or victim satisfaction. I'm talking about things like restorative justice and Indigenous-led policing. And they are at a fraction of the price. Many of them actually generate cost savings. They not only cost-recover, they actually generate savings. So, we can keep doing things the way we've done it. We can double down on tough-on-crime, or tinker with the status quo, but it is not going to shift the needle. It is not going to make us safer.

TH: You also touch on drug decriminalization in this book, something we have talked about at length last time you were on the program. As I said last time, I have found the decriminalization argument very convincing in the past. I find myself a little less convinced these days. Vancouver has implemented this, with small amounts of opioids, crack, meth, and cocaine for personal use allowed. We are seeing some dystopian, open-air drug markets, very high opioid deaths, mass human suffering. The B.C. premier reacted recently by seeking to ban open drug use in playgrounds and parks. My big question on drug criminalization is: What if we're wrong? What if it's not helping?