Creative Reading: MacKay’s Response to the Supreme Court

April 23, 2015

The day after the Supreme Court struck down the Conservative government’s  mandatory minimum sentences for various firearms offences, I wrote that judicial activism is not killing Harper’s crime agenda – Harper is.

If a foolish consistency is the hobgoblin of small minds, the Harper government has been very, very consistent — at least when it comes to crime.

The federal Conservatives have reduced criminal justice policy to a simple flow chart. Step one: Promise ‘tough on crime’ legislation that’s easy to sell to the Conservative base. Step two: Table the bill while ignoring the advice of experts (both inside and outside the Justice department) arguing the new law would be both ineffectual and unconstitutional. Step three: Cling like grim death to the talking points, at least until step four — when the Supreme Court strikes the law down. Step five: Cry ‘judicial activism’, then refer to step one.

As predicted Peter MacKay completed the five step program yesterday, taking to the pages of the National Post to defend his government’s legislative honour.

 Let’s take this one apart, paragraph by painful paragraph. MacKay writes:

Recently, a majority of the Supreme Court of Canada ruled that our government’s law requiring a mandatory sentence of three years for the crime of “possessing prohibited or restricted firearms when the firearm is loaded or kept with readily accessible ammunition”; and five years for the second or subsequent offences, was unconstitutional.

This is a fact – one of the only ones, it seems, that MacKay is capable of getting right.

It is important to note that, while the majority struck down the mandatory sentencing law, it did so on very narrow grounds. All nine justices — the six in the majority and the three in dissent — actually agreed that mandatory prison sentences are legitimate criminal justice tools and are appropriate in the vast majority of gun crimes. In fact, the Court upheld the sentences of the two individuals whose sentences were at issue, both of which were longer than the mandatory sentences that the Court struck down.

MacKay’s claim that the mandatory minimum sentences were struck down on ‘narrow grounds’ is a bit rich.  The law was struck down because it could result in grossly disproportionate sentences, violating the guarantee in s. 12  of the Charter against cruel and unusual punishment – narrow grounds indeed! 

But the majority found that minimum sentences were a legitimate criminal justice tool – right?  Not really. 

The majority did not jump down the rabbit hole of examining all minimum sentences. The Court did, however, clearly rule on one of the government’s favorite justifications for minimum sentencing laws – that they deter the commission of crime.  The Court found that the “government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes”. 

There is little evidence that minimum sentences stop people from committing crime and the Court found there to be a “frailty of the connection between deterrence and mandatory minimum sentence provisions”. Hardly the ringing endorsement claimed by MacKay.

But no fact is immune from MacKay’s spin.  After all, it can hardly be said that the Supreme Court upheld the sentences imposed.  The appellants did not appeal their sentences nor did they argue their sentences were grossly disproportionate. This appeal was about the law.

The real irony is that there has never been any argument that serious firearms offences should not be sentenced harshly. This is what typically occurs and what happened in this case. The trial judges imposed sentence that exceeded the minimum sentences – sort of makes you wonder why we need minimum sentences. 

Overall, we are pleased that the Court recognized that our mandatory prison sentences are appropriate tools to fight serious gun crime.

The Court did no such thing.  What the majority did say was that minimum sentence are good at denouncing crime and exacting retribution.  

I guess it all depends on what you think fighting crime means.  For MacKay fighting means after the fact vengeance not the prevention of harm.

A twisted view for the Minister of Justice. 

However, we agree with the three dissenting judges that it is unfortunate that the majority used a far-fetched hypothetical scenario to stretch a law designed to take gang members and those who seek to commit violent gun crime off the streets into a law that could impact law-abiding firearms owners. 

Peter – pro tip – the next time you intend the law to only apply to narrow fact scenario (say,  gang members who commit violent gun crimes) make sure the law says that. 

Our government has consistently respected the rights of law-abiding hunters, farmers and sport shooters, which is why we eliminated the wasteful and ineffective long-gun registry scheme set up by the previous Liberal government at a cost to taxpayers of more than a billion dollars. And we have full faith — as the three dissenting justices do — in the ability of the Crown to use appropriate discretion not to seek the mandatory sentences in cases involving only technical violations of firearms licensing laws. 

What do the Liberals have to do with this case? Oh right it’s an election year. 

It seems honesty goes out the window in an election year as MacKay attempts to use prosecutorial discretion to mitigate the unfair consequences of minimum sentences.  In other words, the law is unfair but we can trust Crowns to make it fair.  This was the government’s argument before the Supreme Court. An argument that was rejected, because:

This leads to a related concern that vesting that much power in the hands of prosecutors endangers the fairness of the criminal process.  It gives prosecutors a trump card in plea negotiations, which leads to an unfair power imbalance with the accused and creates an almost irresistible incentive for the accused to plead to a lesser sentence in order to avoid the prospect of a lengthy mandatory minimum term of imprisonment.  As a result, the “determination of a fit and appropriate sentence, having regard to all of the circumstances of the offence and offender, may be determined in plea discussions outside of the courtroom by a party to the litigation” (R. M. Pomerance, “The New Approach to Sentencing in Canada:  Reflections of a Trial Judge” (2013), 17 Can. Crim. L.R. 305, at p. 313).  We cannot ignore the increased possibility that wrongful convictions could occur under such conditions. 

The Court is right.  This is exactly what occurs, at least according to a Department of Justice study finding that minimum sentence gun offences “were often used in plea negotiations.”

MacKay seeks to eliminate reviewable and impartial judicial discretion, which is exercised after hearing all the evidence, with unreviewable, coercive discretion, exercised by the Crown in the context of an adversarial system.

MacKay’s statements give an Orwellian flavour to the title Minister of Justice. 

With respect to mandatory prison sentences for firearms offences, the intention of Parliament was very clear: our laws are meant to target dangerous and violent offenders. We believe that gang-related gun crime, particularly gun crimes committed by repeat offenders, are serious offences that deserve serious penalties. 

If that is what MacKay intended why did he write a law that applied so broadly? Bad drafting? Bad advice? Partisan blindness?

Light sentences for such crimes rightly offend public sensibilities and undermine confidence in our judicial system. In the words of the dissenting justices in this case, “Parliament’s choice to raise the mandatory minimums in s. 95 reflects valid and pressing objectives.” 

Light sentences?  Who has said anything about light sentences? Peter, remember that the sentence were not appealed and exceeded your minimums.

Sadly public confidence is actually undermined by political rhetoric like MacKay’s – seriously – there are studies about it. 

Public confidence is enhanced with education about the principles of our justice system. Go read the studies, then send the link to MacKay.

Mandatory prison sentences are nothing new; they have been used as a way to deter violent criminals since the Criminal Code was created more than 120 years ago. Today, the Criminal Code provides for more than 60 mandatory sentencing provisions for a range of serious criminal acts such as murder, kidnapping, treason, and impaired driving causing bodily harm. We are pleased that all nine justices of the Supreme Court have recognized their validity in addressing violent crime. 

Again with the 9 judges recognizing the validity of minimum sentence to address violent crime.  I know that is what MacKay wants the decision to hold.  But if wishes were fishes….

MacKay is right – minimum sentences have been around for 120 years. In 1892, there were six of them: engaging in a prize fight (three months), frauds upon the government (one month), stealing post letter bags (three years), stealing post letters (three years), stopping the mail with intent to rob (five years), and corruption in municipal affairs (one month).  

I guess mail crimes were a big problem in 1892.

We agree with the Court that penalties should match the severity of the crimes committed. This was clearly demonstrated by the use of new sentencing provisions introduced by our government to impose consecutive terms of imprisonment — 75 years in total — in the sentencing of the assailant who shot four RCMP officers in Moncton. And, while we agree with the three dissenting justices that the majority’s concerns in this case “are not grounded in experience or common sense” and do not provide “a sound basis on which to nullify Parliament’s considered response to a serious and complex issue,” we do welcome the Court’s suggestion that Parliament could re-enact the same mandatory sentences with a carve-out for technical violations of licensing provisions that do not pose a direct danger to others. In responding to the Court’s decision, we will carefully consider this invitation. 

MacKay is right.  The majority did say that “Parliament could have achieved its objective by drafting an offence with a close correspondence between conduct attracting significant moral blameworthiness … and the mandatory minimum, rather than a sweeping law that includes in its ambit conduct attracting less blameworthiness for which the mandatory minimum sentence would be grossly disproportionate.”

 It should give us little comfort that it took years of litigation for the Justice Minister to learn this lesson. 

But knowing is half the battle.

Our government will also continue to strive to toughen sanctions where we feel Canadians are at a risk from serious crimes — whether it be gun crime, offences against children, human trafficking, gang-related violence, or sexual assault.  

Thank God for the courts and the Charter of Rights and Freedoms.

We strongly believe that we are acting in the best interests of families and communities, within the bounds of the Constitution, with respect for the democratic process, and with the confidence of Canadians. 

I am sure you do Peter, I am sure you do.

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