More than sunny ways needed to address mandatory minimums
- Subtitle: The Woodshed
Over the last 10 years, our Criminal Code has been radically altered. The changes did not happen all at once but slowly as evidence-based police gave way to partisan ideology. The death was one of a thousand cuts.
The Conservatives were wicked smart in implementing their crime agenda. Major legislative changes were buried in massive omnibus bills. Small but problematic amendments were hurried through Parliament and shielded from constitutional scrutiny in private members bills, and the parliamentary review process was gamed to suppress evidence that contradicted the government’s agenda.
We are living with the sad results: overcrowded jails, massive costs, reduced public safety, and law after law ruled to be unconstitutional.
And there is no better example of the Conservatives’ disdain for evidence-based criminal justice policy than mandatory minimum sentences.
The Harper government promoted mandatory minimum sentences as a tough-on-crime elixir. However, the reality is that mandatory minimum sentences are simply 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.
Proponents of mandatory sentences say minimum sentences deter crime and make communities safer.
Let’s look at what the evidence does tell us: Minimum sentences and harsh incarceration aren’t effective at reducing crime, and they do little to assist with rehabilitation.
The Library of Parliament has made this clear to the government through reports highlighting the ineffectiveness and the negative impacts of mandatory minimum sentences. A study published in 2002 concluded that existing research generally doesn’t support the use of mandatory minimum sentences for deterrence or for reducing sentencing disparities.
One Canadian meta-analysis found that whether an offender had a short or long sentence or whether the offender was given a prison or a community sentence made little difference in general recidivism rates. In fact, prison was found to produce slight increases in recidivism.
But here’s something we do know for certain: Incarcerating offenders for longer periods results in increased prison costs to the taxpayer, which aren’t necessarily offset by any reduction in crime.
Despite the fact that numerous minimum sentences have been struck down by the courts as being overly cruel, there are still scores on the books and their negatives linger.
Mandatory minimum sentences result in the insidious transfer of discretion from judges to the Crown prosecutors — who have the discretion to drop a minimum sentence in exchange for a plea to a lesser charge. This sort of deal, dangled before an incarcerated accused, can result in a perverse inducement for the innocent to plead guilty. And unlike judicial discretion, Crown discretion is not reviewable and it’s not transparent.
Mandatory minimum sentences are resource intensive, counterproductive, offer little to no deterrent effect, and sadly have a disproportionate impact on aboriginal groups, in light of the Supreme Court’s decision of R. v. Gladue and, R. v. Ipeelee.
Sunny ways could not come soon enough.
Trudeau campaigned on a pledge of open and transparent evidence-based decision-making and has instructed Minister of Justice Jody Wilson-Raybould to “conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade.”
Case closed, the Liberals will reconsider all the mandatory minimum sentences.
But let’s not hold our breath. The Liberals are better than Harper. Of this there is no doubt, but it is a stretch to call the Liberal platform progressive — a mirage perfectly exemplified by the Liberal tax policy.
Election promises are made to be broken. The Liberals quickly recalibrated their refugee promises. During the election, the Liberals’ pledge to legalize and regulate marijuana “right away“ seems to be wildly optimistic. Oh, and there is the slow backing away from the vow to hold any deficit to $10 billion.
The reality is that justice issues are not always popular and the Liberals do seem to value popularity.
Remember that the Liberals backed down from their criticism and ultimately supported the Conservatives’ lawful access, digital privacy, and cyberbullying law, Bill C-13, for political reasons. And they voted for mandatory minimum pot laws, and the Barbaric Cultural Practices Act. Oh, yeah, the Liberals also supported Bill C-51 so the Conservatives could not make political hay.
These were all decisions driven by a desire for political popularity or, at least, a desire to avoid attracting partisan criticism.
Perhaps this is a very different Liberal party from the one in 2009 that (along with Justin Trudeau) voted for bill C-15, which would have imposed a six-month minimum sentence for growing six pot plants. Bill C-15 passed the House, passed the Senate, and was waiting for Royal assent when Parliament was prorogued in 2009 — in case anyone ever asks you to name one good thing about prorogation.
But political parties change and sunny ways.
The government, however, may not need to expend all of its political capital changing every minimum sentence in the Criminal Code. Perhaps the answer will come from the ghost of Irwin Cotler, who in one of his last acts as a member of Parliament introduced a private member’s bill that would allow judges to consider particular circumstances at sentencing, notwithstanding mandatory minimums.
Effective criminal justice reform requires the conviction that the Liberals, time and time again, failed to demonstrate as a third party. Cotlers’ one-page private members bill is a start.
Sunny ways alone simply won’t suffice.
Michael Spratt is a partner at the Ottawa criminal law firm Abergel Goldstein & Partners. He has served as a director of the Criminal Lawyers’ Association and is currently the vice president, of the Defence Counsel Association of Ottawa. He is an award-winning blogger who frequently appears as an expert witness before the House of Commons and the Senate. Check him out at michaelspratt.com and on Twitter @mspratt.
Column: The Woodshed