Mandatory minimums ‘like cutting off the hand of someone who steals’

The federal Safe Streets and Communities Act could lead to a rise in the number of repeat offenders if more resources aren’t devoted to rehabilitating people who commit sexual offences against children, says one criminal lawyer.

Steven Tress, a criminal and immigration lawyer in Toronto, says while portions of the act do aim to increase funding for rehabilitation services in Canadian jails, most community programs that work to stop people from reoffending will not be available in jail. He says that may increase the likelihood of reoffending once offenders complete their mandatory minimum sentences.

“While some rehabilitation programs are available in jail, space will be limited and funding will need to be increased to support them. So far, the federal government hasn’t done that,” says Tress.

“Mandatory minimums are like cutting off the hand of someone who steals. It may deter them in the short term, but if you haven’t addressed the root of why they are stealing in the first place, your streets will not be any safer, which is ironic given the name of the act.”

Mandatory minimums for offenders who commit sexual crimes against children under Bill C-10, the Safe Streets and Community Act (often called the omnibus crime bill) came into effect on Aug. 9.

The act establishes mandatory prison sentences for seven existing Criminal Code offences, such as luring a child, and eliminates conditional sentences like house arrest. The maximum penalty for indictable offences involving a parent or guardian procuring their child for illegal sexual activity while they are under the age of 16 will also be increased to 10 from five years.

Additionally, the act will create two new offences with mandatory prison sentences. The offences will make it illegal for anyone to provide sexually explicit material to a child for the purpose of facilitating the commission of a sexual offence against a child, and using telecommunications, including the Internet, to communicate with another person to commit a sexual offence against a child.

“The sexual exploitation of children is a heinous crime that causes irreparable harm to the youngest and the most vulnerable members of our society,” said Federal Justice Minister Rob Nicholson in a statement. “Our government is sending a clear message to dangerous pedophiles who prey on our children: from now on, you will serve jail time.”

But Tress says while sexual offences against children are a serious crime, he feels the federal government didn’t have enough evidence to suggest judges weren’t taking crimes against children seriously enough.

“In my experience, judges take it very seriously,” says Tress. “In my opinion, there wasn’t any evidence to suggest to the federal government that judges were not doing that before the act was pushed forward.”

In fact, Tress says he is aware of two cases where judges have chosen not to apply mandatory minimums to some offenders under the act.

“As criminal lawyers, we aren’t sure how judges are going to react to this,” he says. “Conditional sentences are an important tool available to judges and it looks as though they are still favoured in some circumstances.”

In the meantime, Tress says he expects a spike in Charter applications on a case-by-case basis.

“If there aren’t enough beds or space in the jail for an influx of offenders, they might have a case where there are intolerable conditions,” says Tress. “No matter what law is passed, as Canadians, we do have Charter protections. You can’t just say, OK, you’ve done this act, and regardless of the details or circumstances, you will be sent to jail.”

The federal government introduced the Bill C-10 in September 2011 and it got Royal assent on March 2012. It combines amendments from nine separate bills that will make fundamental changes to almost every component of Canada’s criminal justice system.

Many criminal lawyers have strongly criticized the bill, saying it will hinder a system already plagued by overcrowded jails and little funding.

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