A new report from Statistics Canada shows that, since the introduction of mandatory minimum penalties (MMPs) in 2005, there has been a small increase in the proportion of summary cases of certain violent crimes resulting in a guilty finding but a significant increase in custody sentences, and that cases can take longer to work their way through the courts.
Five new acts passed between 2005 and 2015 — including, most recently, the Tougher Penalties for Child Predators Act — have resulted in longer minimum sentences. The StatsCan report, Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences, written by Mary Allen and released on Tuesday, notes that for charges of selected sexual violations of children, the proportion of summary cases resulting in guilty findings increased from 72 per cent to 77 per cent, while the increase in custody sentences for guilty cases jumped from 37 per cent to 85 per cent.
The report also noted an increase in court time for these offences: “between 2000/2001 and 2014/2015 there was a continuing increase in the proportion of sexual violations against children cases that took two or more years to complete in court.” This has raised concerns “that the introduction of … (MMPs) for some offences has itself led to court delays, as offenders may make every effort to avoid the minimum sentence.”
Michael Spratt, a criminal defence lawyer at Abergel Goldstein & Partners LLP in Ottawa (and columnist for Canadian Lawyer), says that MMPs offer no incentive for those guilty of crimes to resolve charges, while at the same time they offer a perverse incentive for innocent people to plead guilty to lesser charges in order to avoid a higher minimum sentence. (For example, he says, a more serious crime that an individual is charged with may carry a four-year minimum sentence, but the Crown may offer a deal by allowing that individual to plead guilty to a lesser charge and receive only a one-year sentence.)
Furthermore, Spratt says, “the preponderance of the evidence on MMPs is that they don’t deter others from committing crimes.” “The evidence also leads to the conclusion that increased sentences results in increased recidivism rates.” The longer someone is in custody, he says — cut one off from community resources and family — the more anti-social attitudes can harden. “It can explain why longer sentences have increased the rate of offences.”
For child pornography, the report noted that as police-reported child pornography incidents have increased since 2005, the nature of these cases has become more complex and are more likely now to involve multiple charges and more court appearances, and have a case length exceeding one year. Among child pornography cases with a guilty decision, custody sentences increased substantially.
When offences have mandatory minimum penalties, the report notes, Crown election provides some discretion for prosecutors to pursue proportionate sentencing for less serious cases by electing to proceed by summary conviction -- especially where an offender agrees to plead guilty – which some have argued increases the discretionary power of prosecutors.
The Supreme Court of Canada has addressed the potential for MMPs to result in unjust outcomes in cases, the report notes, such as in R. Morrissey, R. v. Nur and R. v. Lloyd. The court in Lloyd, a firearms offence case, stated that “mandatory minimum sentence provisions that apply to offences can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable.”
The StatsCan report indicates that the government is currently reviewing mandatory minimum penalty legislation. Spratt believes the federal government should not delay longer in amending legislation on MMPs.
“We have sufficient evidence on this topic,” he says. “The detrimental impacts of minimum sentences have been demonstrated and are well known, and there is a concurrence of expert opinion on that. The time for studying this issue is over . . . It’s time for the minister of justice to start acting on principal and getting things done.”
Noting that Prime Minister Justin Trudeau promised to take action on the issue of minimum sentences, Spratt fears that “the closer we get to the next election, the less time there is for a bill to get through, and the less likely this government will want to expend capital on these important justice issues.”
This article has been edited and revised to remove the impression that the Statistics Canada report cited within indicated that crime was on the rise because of the imposition of mandatory minimum penalties.