Policy Options by Elizabeth Sheehy and Isabel Grant 08 May 2018
On April 10, Independent Senator Kim Pate announced her intention to introduce a bill, An Act to Amend the Criminal Code (Independence of the Judiciary), that would grant Canadian judges the authority to impose a “fit” sentence regardless of whether an offence carries a mandatory minimum sentence of imprisonment. It would free judges from mandatory minimum sentences and enable them to impose sentences below the stated minimum where appropriate.
Judges would remain subject to the Criminal Code and common law sentencing principles that constrain the exercise of judicial discretion. In particular, judges are bound by the principle of proportionality, which holds that the sentence should reflect the seriousness of the offence and the moral blameworthiness of the individual who committed it.
Generally, mandatory prison sentences reduce the willingness of accused persons to enter into plea negotiations with the Crown, given that there is no room to negotiate a sentence, and therefore more cases go to trial.
Permitting judges to avoid mandatory sentences has the potential to respond to other crises in criminal justice, including the overincarceration of Indigenous and racialized people as well as persons with mental illness. This bill also would alleviate the problem of systemic delays in the criminal justice system. Generally, mandatory prison sentences reduce the willingness of accused persons to enter into plea negotiations with the Crown, given that there is no room to negotiate a sentence, and therefore more cases go to trial. Now that the Supreme Court, in the Jordan decision, has set firm time limits on the processing of criminal charges, the dismissal of charges — even very serious charges like sexual assault and murder — will be an almost certain remedy for unconstitutional delay. Bringing flexibility back into sentencing would help reduce delay by encouraging guilty pleas.
Why is such a major policy overhaul being proposed by a senator rather than the Liberal government? After all, the Minister of Justice announced in May 2017 her intention to assess and possibly repeal those mandatory minimum sentences added by the Conservative government led by Stephen Harper. She also stated her intention to conduct a policy review of all mandatory minimum sentences — there are more than 70 such provisions in the Criminal Code and the Controlled Drugs and Substances Act — including those enacted by former Liberal governments.
Yet on March 29 of this year, the federal government introduced significant reforms in Bill C-75, aimed at reducing criminal court delays and overincarceration, without a whisper about mandatory minimums. The long-promised response to the proliferation of mandatory minimum sentences was nowhere to be found in this bill.
We thus face a major policy gap when mandatory minimum sentences are used as political trade-offs and for the crass purpose of appealing to a “law and order” base to gain votes. For example, capital punishment was abolished in 1976 in Canada, with the trade-off being a mandatory life sentence and harsh mandatory periods of parole ineligibility. The growth in legislative adoption of mandatory sentences began with the Liberals in the 1990s when, as part of the bill that created the long-gun registry, mandatory minimums were imposed for a number of serious offences committed with a firearm, as a concession to the gun lobby. Under Harper’s leadership, mandatory minimum sentences were either added or increased with respect to 51 offences in the Criminal Code.
Most people who commit crimes do not know what sentence they would face if convicted. Nor do they make a careful cost-benefit analysis based on the length of the possible incarceration.
Harsh mandatory minimums are often justified by the argument that they will deter individuals from committing crimes and thus serve a crime prevention function. This is the rationale cited most often by judges and politicians to justify harsh punishments. Criminologists have spilled much ink trying to demonstrate that deterrence works. In fact, the literature overwhelmingly shows that it does not. Most crimes are not planned in advance but rather are committed impulsively, under the influence of drugs or alcohol or other situational and systemic pressures. Most people who commit crimes do not know what sentence they would face if convicted. Nor do they make a careful cost-benefit analysis based on the length of the possible incarceration they might face if apprehended.
The costs of imprisonment to society are astronomical. It costs over $100,000 per year to incarcerate a man in a federal penitentiary and even more for a woman, depending on where she is held. In 2015-16, the federal government spent $4.6 billion on corrections, 70 percent of which went to custodial sentences. Moreover, incarceration has uncalculated costs. We know that incarceration increases rather than decreases the likelihood of recidivism and reincarceration. Overincarceration destroys individuals and communities.
But instead of the Liberal government assuming leadership of this critical policy issue, it has been left to individual defence lawyers and the courts to sort it out. There are currently 174 constitutional challenges to mandatory minimum sentences proceeding through the courts, according to the Department of Justice Canada (68 percent of the 256 Charter challenges in the courts). Many of these challenges have already succeeded: the Supreme Court of Canada and lower courts have struck down as unconstitutional numerous mandatory minimum sentences related to weapons offences, drug offences and, most recently, sexual offences against children. The Supreme Court of Canada alone has decided three such cases (R. v. Nur and R. v. Charles; R. v. Lloyd) since 2015 and has another one on its docket.
Millions of dollars are being invested in litigating these sentences on a case-by-case basis, resulting in inconsistent jurisprudence across the provinces and uncertainty as to which mandatory minimums are valid and which are vulnerable to challenge. Senator Pate’s bill would go a great distance in reducing the plague of overincarceration and the folly of piecemeal law reform by Charter challenge. Canadians are ready for evidence-based criminal law policy, and the Liberal government has promised to deliver. It is time to trust those who have all the facts before them — judges and the Parole Board — to determine the length of individual sentences.
Elizabeth Sheehy teaches sexual assault law at the University of Ottawa Faculty of Law. Isabel Grant is a professor at the Peter A. Allard School of Law in Vancouver.