Justin Trudeau and Mandatory Minimum Sentences

In a twitter question and answer session today Justin Trudeau was asked for his position on mandatory minimum sentences:

After years of blind ideology and non-evidence based criminal justice policy Mr. Trudeau's response was a breath of fresh air:

Mandatory minimum sentence have been used frequently and have been heavily promoted by the Conservative government as a a tough on crime elixir.  However, the reality is that mandatory minimum sentences are poor policy.  They are not supported by the evidence. They do not make communities safer. They do not deter the commission of offences. They impede rehabilitation. They are costly. They are simply unjust. 

Over the last number of year I have testified at numerous Senate and House committees hearings on criminal law legislation that included the use of minimum sentences, including:  Bill C-268Bill C-54Bill C-299 (House), and Bill C-299 (Senate).  

At these hearings the Government also heard testimony from criminologists, researchers, correctional officials, and other expert witnesses, all of whom do not support the use of mandatory minimum sentences.  There has been little or no evidence presented during these hearings that support minimum sentences as effective policy.

Sentencing and Judicial Discretion  

Any discussion of mandatory minimum penalties must start with an understanding of an important historic principle of sentencing - judicial discretion.  

Judicial discretion is vital to the sentencing process as sentences must be carefully tailored to the circumstances of both the offender and the offence.  Mandatory minimum sentences undermine this principle because they are inflexible.  They are a one size fits all solution to a non-existant problem.

Injustice may not be the intent of minimum sentences legislation, but it is the result.

Minimum sentence legislation is not necessary.  When the relevant sentencing case law is examined it becomes clear that a vast majority of sentences imposed (in the absence of any minimum penalty) are entirely appropriate.  Courts are not soft on crime and in the event a Court does not impose the appropriate sentence the Crown has a mechanism to appeal that decision.

Injustice arises when discretion is removed from the sentencing process because there can be cases where a sentence less than the minimum would be appropriate.  The inflexible nature of mandatory minimum sentences leaves our justice system without the appropriate discretion to deal with those cases, leading to harsh and excessive sentences.

Judicial discretion is an important aspect of our system for the simple reasons that judges are in the best place to impose sentences.  Judges are familiar with the specific facts of the case, they are familiar with the offender, they are familiar with the offence, the have heard victim impact statements, and they familiar with the community in which the offence took place.  Minimum sentences do not take these factors into account.

We are lucky in Canada to be blessed with a well-educated, competent, and incorruptible  judiciary.  In fact, it is a system we have exported around the world when assisting emerging democracies to set up their justice systems.

When we remove discretion from judges, it is not just that injustice can result - it does result.

Proponants of manditory sentences may accept (or turn a blind eye to) the inherent injustice because - they say - minimum sentences deter crime and make communities safer.  

They are mistaken, ignorant or willfully blind to the evidence.  

Minimum sentences don't make us safer.  In fact quite the opposite.  Minimum sentences do not deter a person from committing a crime, they do not deter an offender from reoffending, and they negatively impact upon rehabilitation.

The evidence does however show that minimum sentences carry many additional  negative consequences. 

Mandatory minimum sentences result in the insidious transfer of discretion to the police and to the Crown — the police who decide what charges to lay, and the Crown who decide how to proceed with a charge.  

Most importantly the Crown has discretion to accept pleas to lesser included offences that do not carry minimum penalties.  The discretion to drop a minimum sentence in exchange for a plea can result in a perverse inducement for an innocent accused to plead guilty.  

Unlike judicial discretion, police and Crown discretion is not reviewable and it's not transparent. The removal of judicial discretion obscures the decision-making process.  Judges are required to deliver reasons for their decisions.  Judges are reviewable by appellate courts.  The police and the prosecutors are not.

Minimum sentences are resource intensive.  They increase burdens on the court, they delay trials, they increase the prison population, and they carry the future cost of less successful rehabilitation.

Mandatory minimum sentences also have a disproportionate impact on aboriginal groups, in light of the Supreme Court's decision of R. v. Gladue and, R. v. Ipeelee.

Minimum sentence are the antithesis of evidence based police making.  They are a simple and myopic way of looking at a complex issue. 

It is for these reasons that Mr. Trudeau should be given credit for his position.  For it is a risky political position.  

Despite the evidence on minimum sentences ideologues will attack Trudeau as being being soft on crime.     

Opponents will point out that Trudeau voted in favour of mandatory minimums in the past.  In response to this issue Trudeau told the Globe and Mail that his views evolved: 

“I have evolved in my own thinking,” Mr. Trudeau said. “I was more hesitant to even decriminalize not so much as five years ago. But I did a lot of listening, a lot of reading, and a lot of paying attention to the very serious studies that have come out and I realize that going the road of legalization is actually a responsible thing to look at and to do.”

This is the type of evidence based policy decision making that should be occuring in Ottawa.  It should be acceptable to change one's position if justified on the evidence. 

The problems related to the removal of judicial discretion were on display in Ottawa last week as bill C-37 came into force.  Bill C-37 removed judicial discretion with respect to the imposition of victim fine surcharges.  The potential problems with the lack of judicial discretion when considering the fines should have been apparent - as I wrote about last week.  

This week the Ottawa Citizen reported that judges are reluctant to impose the surcharge in cases where would be manifestly unjust.  In an attempt to avoid unfairness  judges have been granting indigent offenders decades to pay (and in one case simply refusing to impose the fine altogether).

To thier credit the Liberals and the Green Party were the only members of parliament to vote against bill C-37 and its attack on judicial discretion.  

The importance of evidence based policy, judicial discretion, and honesty with respect to minimum sentences can't  be adequately addressed in a 140 character twitter message.  

I hope Trudeau's message today will be the start of an honest dialogue that has been sadly absent for too long under the Conservative Government.