Unconstitutional Mandatory Minimum Sentences, Poor Policy, and MacKay’s Blindness

November 13, 2013

Yesterday I wrote about the constitutional issues inherent in mandatory minimum sentence.  In short mandatory minimum sentences are a poor and simplistic policy.

On November 12 the Ontario Court of Appeal released judgements in 6 cases that deal with the constitutionality of the imposition of mandatory minimum terms of imprisonment for various firearm-related offences.

Importantly the Court ruled that the 3 year minimum sentence found in s.95(2)(a) of the Criminal Code infringes s. 12 of the Charter and of no force or effect. 

As Leonardo Russomanno pointed out in his in depth analysis of the cases, minimum sentences are not by definition unconstitutional.  The ruling of the Court of Appeal however is not without significance.  

In finding a violation of s.12 of the Charter the Court of Appeal rules that the mandatory minimum sentence could amount to cruel and unusual punishment.  In R. v. Nur the Court found:

The words “cruel and unusual” have a long constitutional pedigree and are used together as “a compendious expression of a norm” to describe a punishment that is so beyond what would be proper or proportionate punishment as to be grossly disproportionate:  R. v. Miller, [1977] 2 S.C.R. 680, at pp. 689-90, per Laskin C.J., concurring; and Smithat p.1072. 

A sentence may be excessive, even sufficiently excessive to warrant appellate intervention, despite the high deference owed to sentences imposed at trial, and still not reach the level of gross disproportionality:  see Smithat p. 1072; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26; R. v. McDonald (1998), 40 O.R. (3d) 641 (C.A.), at p. 665; and R. v. K.(R.) (2005), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 66.

The Supreme Court of Canada has consistently used strong language to describe the kind of sentence that will run afoul of s. 12.  For example, Laskin C.J. in Miller, at p. 688, described a cruel and unusual sentence as one that is “so excessive as to outrage standards of decency”.  His language echoes throughout the Supreme Court of Canada’s s. 12 jurisprudence.  

In other words the new minimum sentences are more than merely excessive, they are “so excessive as to outrage standards of decency” and the punishment is so disproportionate that it is abhorrent or intolerable.  

The question must be asked: did the Government have any cue that the legislation could suffer from such a flaw?

Section 95 of the criminal code prohibiting the possession of prohibited or restricted firearms that are loaded or where ammunition is readily accessible, came into force in December 1998.

In May 2008, the mandatory minimum sentence was increased to three years for a first offence and five years for a subsequent offence if the Crown proceeded by indictment.

The omnibus crime bill that legislated the new mandatory minimums was eloquently titled: Bill C-2: An Act to amend the Criminal Code and to Make Consequential Amendments to Other Acts. Committees in both the House and Senate studied and heard testimony from experts on the bill.  

The first indication of a potential problem, however, should have come from the Government’s own Parliamentary Information and Research Service department who prepared a detailed legislative summary.

The Government was inform through this legislative summary that there could be major issues with the use of mandatory minimum sentences.  The legislative summary informed the Government that:

Mandatory minimum terms of imprisonment are generally inconsistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as they do not allow a judge to make any exception in an appropriate case. […] A mandatory minimum sentence may constitute cruel and unusual punishment, in violation of the Canadian Charter of Rights and Freedoms, if it is possible for the mandatory punishment, in a specific matter or reasonable hypothetical case, to be “grossly disproportionate,” given the gravity of the offence or the personal circumstances of the offender.

The Government was further informed that:

A study published in 2002 concluded that existing research generally does not support the use of mandatory minimum sentences for the purpose of deterrence, or for the purpose of reducing sentencing disparities.  That said, the evidence was somewhat inconsistent and unclear in the specific context of firearm offences.

One Canadian meta-analysis found little difference in general recidivism rates, regardless of length of incarceration or whether the offender was given a prison or community sanction. In fact, prison produced slight increases in recidivism.

Decisions regarding appropriate punishment [through mandatory sentences] are therefore transferred from the judiciary to the prosecution.

When a charge for an offence carrying a minimum sentence is maintained, the accused has no incentive to plead guilty, more likely leading to a costly trial. 

Incarcerating offenders for longer periods results in increased prison costs, which are not necessarily offset by any reduction in crime rates and recidivism.

The Government’s own information clearly sets out the potential constitutional difficulties, the lack of utility, and the negative impacts of mandatory minimum sentences. 

The Government also heard from many experts to who counseled extreme caution with respect to the use of mandatory sentences.  These witnesses include (but are not limited to: Craig Jones – Executive Director of the John Howard Society, Isable Schurman – Law Professor, Julian Roberts – Professor of CriminologyTim Stuempel – Chair, Policy Review Committee, Canadian Criminal Justice AssociationJoseph Di Luca, Vice-President, Criminal Lawyers’ Association.

The House committee on Justice and Human rights also heard from Anthony Doob, a highly respected criminologist from the University of Toronto.  For the last 35 years Mr. Doob has carried out research on a number of different aspects of the justice system, most notably, in this context, on sentencing, imprisonment policies, and public attitudes concerning the criminal justice system.  Mr. Doob noted:

The rate of violent crime is, at the moment, relatively stable, which provides, I think, an ideal time for developing rational and effective approaches to crime.

Bills such as this one imply that the solution to serious crime in Canada lies in small changes in the criminal law. In effect, the message you give is that you have addressed the violent crime problem. In fact, there’s almost nothing in this bill that will have any impact on violent crime. So not only are you distracting yourselves from changes that will have long-term positive impacts on our society, but you are doing things that will use resources that could be better spent on measures that would address crime.

Although the preamble suggests that the laws would ensure that violent offenders are kept in prison, it is notable that there is not a reference to fair and proportionate sentences that focus on the harm, on what the offenders have done.

You are at best ignoring the principle of proportionality in sentences.

The critique of the proposed legislation was not positive and should have raised serious questions not only about its constitutionality but with its necessity and utility.  Mr. Doob went on to tell the Senate Committee:

Similarly, the preamble to the bill talks about “enacting comprehensive laws to combat violent crime and to protect Canadians.” Although the preamble suggests that laws should ensure that violent offenders are kept in prison, it is notable that there is not a reference to fair and proportionate punishment that focuses on the harm that offenders have done.

Let me give some examples of the provisions of this legislation that have little to do with protecting us from violent crime. The mandatory minimum penalties for firearms offences have been discussed extensively. The evidence of their ineffectiveness is clear. Numerous studies have been carried out in various countries demonstrating that mandatory minimum penalties of this kind do not deter crime.

You may have heard evidence that contradicts this conclusion. I urge you to examine this evidence carefully. The single study that is most often mentioned by government representatives and others as evidence supporting the effectiveness of this aspect of the bill has been thoroughly discredited. 

This type of blunt analysis should cause any Government concerned with evidence based policy making some concern.  Despite the evidence, Bill C-2 bill passed with the offending provisions intact.  Most shockingly, at the time the bill passed by a vote of 221 to 1 (there were some notable abstentions from the vote, included Mr. Irwin Cotler). 

In the last few months various members of parlament, including, Mr. Cotler, Mr. Trudeau, and Mr. Casey  have expressed concern with the Conservative Government’s criminal justice policy in general and with minimum sentences specifically.

In responce to Mr. Cotler’s critism of the Conservative Party’s position It was also pointed out that he has introduced mandatory minimums what he was in Government:

Slightly inconvenient, @IrwinCotler : When you were justice minister, you introduced mandatory minimums: http://t.co/GhAh9TlEXM

— David Akin (@davidakin) November 12, 2013

Mr. Cotler must be commended in his response to this critisism.  He quit franly said that his views have evolved and changed over time. He has come to be convinced by the evidence that minimum sentences are bad policy. 

@davidakin Not at all – I talk about how my views changed: http://t.co/0dbYw2FTll

— Irwin Cotler (@IrwinCotler) November 12, 2013

The evidence based approach by Mr. Cotler and the evolution of his views can be contrasted to the short sighted, ideological, and partisan thoughts of the Justice Minister Peter MacKay who said:

Mandatory minimums ensure those who commit serious or repeat offences are not free to re-commit those offences #cdnpoli #justice

— Peter MacKay (@MinPeterMacKay) November 12, 2013

Shameful that @JustinTrudeau & #LPC oppose mandatory minimum sentencing & seek lighter sentences for the most violent criminals #cdnpoli

— Peter MacKay (@MinPeterMacKay) November 12, 2013

These comments only serve to demonstrate that Mr. Mackay is still not listening to the evidence.  

The expert evidence was and is clear.  Minimum sentences do not reduce recidivism or keep communities safer.  Minimum sentences may incapacitate an offender – for a while – but they do not address the larger criminological issues.

It is a blatant falsehood and a gross misrepresentation to say that those who oppose mandatory sentences seek lighter sentences for violent offenders.  

Those who oppose mandatory minimum sentences wish to see the appropriate and constitutional sentence imposed.  They wish to give judges the discretion to make the appropriate decisions.  Those who oppose minimum sentence wish to see justice done in a way that does not offend standards of decency.  This is not acheieved by a one size fits all minimum sentence.

Mr. MacKay continues to blindly suppors mandatory sentences and seeks to vilify those who disagree with him.  

Using the wording of the Court of Appeal it is Mr. MacKay who, in the absence of evidence, continues to supports sentences that can be so excessive as to outrage standards of decency.  It is this position that should be vilified.  

This is not the judgement that we should expect from our Minister of Justice.