I hate to pile on the Liberals when they are down, but a recent editorial in the Globe and Mail and a series of articles by justice writer Sean Fine have raised the outstanding issue of what the government is doing to cut the number of mandatory minimum sentences which are now clogging Canada’s criminal courts.
Historically, Canada had a very few mandatory minimums in the Criminal Code, primarily for serous offences upon which everyone would agree. By 2006, there were 40. By 2016, the number rose to 80 plus another 26 related to drugs under the Controlled Drugs and Substances Act.
Stephen Harper’s “tough on crime” agenda more than doubled the number of mandatory minimums, primarily to satisfy his political base. The Tories pursued this minimum sentence mania as a direct attack on the traditional discretion of judges to impose sentence in the criminal justice system. Historically, judges exercised their discretion based on the facts of the individual case and according to established principles of sentencing in the common law and in section 718 and related provisions of the Criminal Code. All criminal justice professionals, police, corrections and rehabilitative experts agreed that this traditional judicial discretion best serves the interests of victims, offenders, the criminal courts, and public safety. In the face of this expert advice, the Harperites did the opposite.
What has happened post-Harper is a trend which was widely predicted and should be addressed as quickly as possible. For lack of action by Parliament on the issue, Sean Fine reports that judges across the country and at all levels have been left to deal with the situation on an ad hoc basis, as best they can. The Supreme Court of Canada in 2015 struck down the three-year minimum for illegal gun possession in R. v. Nur, and a year later the one-year minimum for a second drug trafficking offence in R. v. Lloyd. They found that the statutory minimums were so excessive in the circumstances that they violated the offender’s 12 Charter rights against “cruel and unusual punishment.” Subsequently courts at all levels, including various Courts of Appeal who define the precedents applicable in their provinces, have made similar findings in cases before them.
The most recent is that of the B.C. Court of Appeal which struck down a six-month minimum jail sentence, and instead imposed a nine-month house arrest, for an Indigenous man who offered his niece $100 in exchange for a sex act. In that case, the Court emphasized its statutory and common law duty to consider the consequences of the sentence on Indigenous people. Now the Attorney General of B.C. is appealing the case to the Supreme Court of Canada arguing that the minimum jail sentence is necessary to protect Indigenous victims.
This case-by-case litigation in courts across the country is costly, counter-productive, and a colossal waste of time and money. A patchwork of contradictory decisions apply different penalties to different people in different provinces and territories. Crown attorneys for the provinces and the federal government waste thousands of dollars defending minimum sentences which did not before exist. Courts are clogged with cases which cannot be resolved because the constraints imposed by the minimum sentences impede plea negotiation. The existing uncertainty encourages unnecessary litigation at great expense to the public and taxpayers alike.
Rationalizing the minimum sentence regime in Canada’s Criminal Code and the Controlled Drugs and Substances Act is a no-brainer. The Prime Minister and his Minister of Justice would be wise to make it a priority.
There are many problems facing Canada’s criminal justice system: delay in the courts, the lack of juries representative of the people, a Criminal Code which reads like the Income Tax Act. All can not be addressed at once
The government has developed new procedures for appointing Supreme Court and Superior Court judges. It has filled many judicial vacancies. Money has been allocated to promote the training of police officers who investigate sexual assault cases so that the rate of cases determined to be “unfounded” declines. This is part of a move to promote “best practices” in Canada’s criminal courts.
If “best practices” is the name of the game, Parliament must deal with the excess of mandatory minimum sentences as soon as possible. The next election will come all too quickly. I would hate to see this promise relegated to the list of the “undone.”